Opinion
1:23-CV-0256-LY-DH
03-30-2023
MICHAEL J. MAJOR, Plaintiff v. STATE BAR OF TEXAS, AMERICAN BAR ASSOCIATION, Defendants
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Order and Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiff Michael Major's Application to Proceed In Forma Pauperis. Dkt. 2. Because Major is requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Major's financial affidavit and determined Major is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Major's request for in forma pauperis status. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Major is further advised that, although he has been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this complaint and is recommending Major's claims be dismissed. Therefore, service upon Defendants should be withheld pending the District Court's review of the recommendations made in this Report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. REVIEW OF THE MERITS OF THE CLAIM
Because Major has been granted leave to proceed in forma pauperis, the Court is required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that “the court shall dismiss the case at any time if the court determines that ... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327.
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 20-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Major sues Defendants State Bar of Texas (“State Bar”) and the American Bar Association (“ABA”) alleging that his rights under the First, Fifth, and Fourteenth Amendments have been infringed by the licensing requirements of the “American Bar Association [and] ... its subordinates.” Dkt. 1, at 2. Major claims that “[f]reedom to choose an attorney is derivative of the foundational freedom of speech” and that he is entitled to “speak freely in the Courts of Law for his fellow citizens” regardless of whether he is a licensed attorney. Id. Further, Major claims that his freedom to “present cases in Federal or State Courts on behalf of whomever he chooses” is at stake and that his “[l]ife will be degraded [and] he will suffer tremendous [p]roperty loss in the form of money” if relief is not granted. Id. Major requests that this Court “grant him sovereignty of litigation in Federal Courts in the United States & State Courts in Texas,” “revoke the self-appointed legal authority of the Defendants,” and “dissolve the requirement for an attorney to go through the mire of credentialing.” Id.
As a preliminary matter, the ABA is a voluntary association of lawyers, not a licensing entity and is therefore, not a proper party to Major's suit challenging attorney licensing requirements.
The State Bar of Texas is an “administrative agency of the judicial department of the government.” Tex, Gov't Code § 81.011(a). Major's claims against the State Bar are claims against the State of Texas and are therefore, barred by the doctrine of sovereign immunity. See Richardson v. S. Univ., 118 F.3d 450, 452 (5th Cir. 1997) (stating that sovereign immunity protects “arms of the state”). States may generally not be sued by private individuals in federal court. Moore v. La. Bd. of Elementary and Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Further, state sovereign immunity acts as a bar to federal “suits against a state, a state agency, or a state official in his official capacity unless that state has waived its sovereign immunity or Congress has clearly abrogated it.” Bryant v. Tex. Dep't of Aging & Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (internal quotations and citation omitted); Cozzo v. Tangipahoa Par. Council-President Gov't, 279 F.3d 273, 280-81 (5th Cir. 2002) (“When a state agency is the named defendant, the Eleventh Amendment bars suits for both money damages and injunctive relief unless the state has waived its immunity.”). Major offers no authority stating that Texas's sovereign immunity as to his claims regarding State licensure requirements has been abrogated by Congress or waived by the Texas State Legislature. Further, while the “Eleventh Amendment does not bar a private party from suing a state officer in his official capacity for injunctive relief,” Major has not identified any state officers against whom he brings his claims. See Union Pac. R. Co., 662 F.3d at 340 n.5 (5th Cir. 2011).
Having failed to plead sufficient supporting factual allegations to demonstrate a non-frivolous claim, Plaintiff's complaint must be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i).
III. ORDER AND RECOMMENDATION
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis, Dkt. 2. The Magistrate Court RECOMMENDS the District Court DISMISS Major's complaint, Dkt. 1, pursuant to 28 U.S.C. § 1915(e)(2)(B).
The referral of this case to the Magistrate Court should now be CANCELED.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).