Opinion
CIV-21-1155-JD
12-09-2021
R. WAYNE JOHNSON, Plaintiff, v. TIMOTHY DEGUISTI, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner appearing pro se, brings this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A, the undersigned recommends Plaintiff's action be dismissed without prejudice.
I. Background
Plaintiff originally commenced this action in the Oklahoma County District Court, and the case was removed to this Court. Doc. No. 1; Doc. No. 1-3. Plaintiff seeks relief under Bivens. Doc. No. 1-2 at 4. He alleges violations of his constitutional rights arising from the litigation of two of Plaintiff's prior actions. Doc. No. 1-2 at 2. Plaintiff references a case he previously filed in state court that was removed to this Court and dismissed as frivolous, Johnson v. U.S. Postal Serv., No. CIV-20-350-D, 2020 WL 5351970 (W.D. Okla. May 13, 2020), adopted, 2020 WL 3027675 (W.D. Okla. June 5, 2020) (“Johnson I”). Doc. No. 1-2 at 2. Plaintiff also refers to a more recent case he filed in state court that was also removed to this Court and dismissed as frivolous, Johnson v. Balkman, No. CIV-21-633-D, 2021 WL 5443264 (W.D. Okla. Oct. 22, 2021), adopted, 2021 WL 5442232 (W.D. Okla. Nov. 19, 2021) (“Johnson II”). Doc. No. 1-2 at 2, 5-6.
As this Court explained in Johnson I, “Plaintiff has a long history of frivolous filings.” Johnson I, Doc. No. 24 at 2.
Many years ago, [Plaintiff] lost the privilege to proceed in forma pauperis in federal court by operation of the “three strikes” provision of § 1915(g). See Johnson v. Whatley, 73 Fed.Appx. 79 (5th Cir. 2003) (finding Plaintiff had accumulated four strikes and § 1915(g) applied); Johnson v. Thaler, No. 2:10-CV-041, 2012 WL 612529, R&R (N.D. Tex. Feb. 14, 2012) (listing abusive case filings and recommending sanctions), adopted, 2012 WL 624581 (N.D. Tex. Feb. 27, 2012); see also Johnson v. Two Unknown U.S. Marshals, Civ. Action No. 08-5522, 2008 WL 5190888 (E.D. Pa. Dec. 9, 2008) (applying § 1915(g)); Johnson v. Ramos, No. 1:06CV516, 2006 WL 2639511 (E.D. Tex. Sept. 13, 2006) (applying § 1915(g)). Plaintiff has previously filed other cases in this district, the most recent of which was also dismissed pursuant to § 1915(g). See Johnson v. Mitchell, Case No. 16-1137-D, Order (W.D. Okla. Feb. 3, 2017).
Since 2001, Plaintiff has been considered a “vexatious litigant' under the Texas Civil Practice and Remedies Code. See Johnson v. Sloan, 320 S.W.3d 388 (Tex. App. 2010). More recently, Texas courts have imposed filing restrictions and other sanctions. See Johnson v. Harrison, 399 S.W.3d 348 (Tex. App. 2013).Id. at 2-3.
Though by no means a model of clarity, in the present Complaint, Plaintiff alleges Defendants have violated his right of access to the courts. In support of this assertion, Plaintiff vaguely alleges that his previous lawsuits were removed to this Court “sans authority,” this Court lacked jurisdiction possibly based on Texas state law, and that Defendants created a “civil conspiracy - assit. - ratify -agree with others in common plan causing damages.” Doc. No. 1-2 at 2-3, 5, 6. Plaintiff seeks damages in an amount no less than $2.5 million. Id. at 4. Plaintiff names as Defendants United States Chief District Judge for the Western District of Oklahoma Timothy DeGuisti, Assistant United States Attorney for the Western District of Oklahoma Emily Fagan, Acting United States Attorney for the Western District of Oklahoma Robert J. Troester, and the United States of America.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A. The court must dismiss a complaint or any portion of it at any time if it determines the claims are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id.
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Defendants Fagan and Troester
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain “(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Fed.R.Civ.P. 8(a). To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555.
“Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). It “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, from the allegations in a complaint, a defendant must be able to learn “what each defendant did to [the plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007).
Pro se litigants are not excused from complying with these minimal pleading demands. “This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot “supply additional facts, [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
Plaintiff's allegations are limited to unsupported, conclusory assertions that Defendants, through a civil conspiracy, violated his right of access to the courts, and that there was no authority to remove his cases to federal court. Defendant Fagan represented some of the Defendants in Johnson II. Plaintiff only alludes to Defendant Fagan's role, stating that she removed his previous case to federal court “sans authority.” Doc. No. 1-2 at 2. The Notice of Removal filed in Johnson II clearly states the case was removed pursuant to 28 U.S.C. §§ 116(c), 1442(a)(1). Johnson II, Doc. No. 1 at 1. Plaintiff's conclusory statement that Defendant Fagan took said action without authority is not sufficient “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Additionally, Plaintiff does not assert any specific allegations regarding action on the part of Defendant Troester beyond his conclusory assertion that all Defendants created a civil conspiracy. This allegation is not sufficient to inform Defendant Troester what he did to Plaintiff, or when, or how. Nasious, 492 F.3d at 1163. Thus, Plaintiff's allegations against Defendants Fagan and Troester fail to state a claim upon which relief could be granted and should be dismissed.
IV. United States District Judge DeGuisti
As explained in Johnson II, Doc. No. 39 at 7, “judges are generally immune from suits for money damages.” Stein v. Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)). “There are only two exceptions to this rule: (1) when the act is ‘not taken in [the judge's] judicial capacity,' and (2) when the act, ‘though judicial in nature, [is] taken in the complete absence of all jurisdiction.'” Id. (quoting Mireles, 502 U.S. at 12). But unless one of these exceptions applies, “[a] judge will not be deprived of immunity because the action he took was in error, [or] was done maliciously ....” Stump v. Sparkman, 435 U.S. 349, 356 (1978). “The ‘judicial acts' for which judges enjoy immunity include all functions normally performed by a judge when the parties deal with the judge in [their] judicial capacity.” Bradley v. Gray, 78 Fed.Appx. 84, 85 (10th Cir. 2003) (citing Stump, 435 U.S. at 362).
Plaintiff's claim against Judge DeGuisti arises from the fact that he presided over both Johnson I and II. Doc. No. 1-2 at 2. Presumably in an attempt to circumvent judicial immunity, Plaintiff asserts Judge DeGuisti lacked jurisdiction over his cases because they were governed by state law. Id. However, Plaintiff's assertion that Judge DeGuisti and/or this Court lacked jurisdiction over his previous lawsuit may provide a basis to appeal the decisions in those cases but does not allege a violation of Plaintiff's federal rights for purposes of a civil rights lawsuit. Thus, Plaintiff has not stated a claim under which relief could be granted and his claim against Judge DeGuisti should be dismissed.
V. United States
Finally, Plaintiff has also named the United States of America as a Defendant in this matter. The United States is not a proper party in a Bivens suit. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 485-86 (1994) (explaining that absent a waiver, sovereign immunity shields the federal government and its agencies from suit and the federal government has not waived its immunity for Bivens actions). Accordingly, Plaintiff's claim against the United States of America should also be dismissed.
VI. Pending Motions
Currently pending in this matter is a Motion for Leave of the United States of America to Appear as Amicus Curiae (Doc. No. 4) and a Motion for Stay of Proceedings or, in the Alternative, Stay of All Pleadings. Doc. No. 5. In light of the recommendation herein, the undersigned recommends these Motions be denied as moot.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on his failure to state a claim upon which relief can be granted. Additionally, the Motion for Leave of the United States of America to Appear as Amicus Curiae (Doc. No. 4) and Motion for Stay of Proceedings or, in the Alternative, Stay of All Pleadings (Doc. No. 5) should be denied as moot.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by December 29th, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.