Opinion
C. A. 6:20-CV-01124-ADA-JCM
12-14-2020
RUSSELL WIESEMEYER, Plaintiff, v. ANDREW KINDLER and JUDGE DAVID PAREYA, Defendants.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local 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's Motion to Proceed In Forma Pauperis (ECF No. 2). For the following reasons, the Court ORDERS that Plaintiff's Motion to Proceed In Forma Pauperis be GRANTED and RECOMMENDS that this case be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
I. BACKGROUND
Plaintiff complains of (and seeks injunctive relief from) eviction proceedings that allegedly took place on December 9, 2020 before Justice of the Peace David W. Pareya. See Pl.'s Compl. at 5. Plaintiff attempts to invoke federal question jurisdiction pursuant to a CDC Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions to prevent the further spread of COVID-19. See Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 FR 55292-01. By Plaintiff's account, it appears the complained-of eviction was set to take place on December 11, 2020. See Pl.'s Compl. at 5.
II. RELEVANT LAW
Judge Austin contemplated a similar situation as the one before the Court in Wiley v. Paxton:
Federal question jurisdiction, which is alleged in this case, requires that the case arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. If the court does not have subject matter jurisdiction, it must dismiss the case. Moreover, “the court has an affirmative duty to raise [ ] issues regarding subject matter jurisdiction, sua sponte, whenever a problem with subject matter jurisdiction is perceived.” Dominguez-Cota v. Cooper Tire & Rubber Co., 39 F.3d 650, 652 n.1 (5th Cir. 2005); Tex. Div., Sons of Confederate Veterans v. Vandergiff, 759 F.3d 388, 392 (5th Cir. 2014) rev'd on other grounds, 135 S.Ct. 2236 (2015) (“Neither party has argued that this court lacks jurisdiction, but federal courts have a duty to consider their subject matter jurisdiction sua sponte.”). A pro se plaintiff's reliance on a federal statute that clearly does not apply is insufficient to invoke federal question jurisdiction. See, e.g., Lopez v. Kora, 2012 WL 1242376, at *2 (N.D. Tex. Mar. 12, 2012), report and recommendation adopted, 2012 WL 1242341 (N.D. Tex. Apr. 12, 2012) (dismissing sua sponte a pro se plaintiff's case for lack of subject matter jurisdiction because the federal statutes cited did not provide a cause of action that applied to the plaintiff's claims).Wiley v. Paxton, No. A-17-CV-980-SS, 2017 WL 6503662, at *1 (W.D. Tex. Dec. 19, 2017).
III. DISCUSSION
Plaintiff claims to have zero income or assets in his application for in forma pauperis (“IFP”) status. See ECF No. 2. Thus, the Court GRANTS Plaintiff's Motion to Proceed In Forma Pauperis. However, because the Court recommends dismissal of this matter for lack of subject matter jurisdiction, service on the Defendants in this matter should be withheld pending the District Court's review of this Report and Recommendation. Only in the event that the District Court rejects this Report and Recommendation should service issue.
Once IFP status is conferred, 28 U.S.C.A. § 1915(e)(2) provides 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). Allegations by pro se litigants must be given liberal construction to ensure that their claims are not unfairly dismissed because of their unfamiliarity with the law. Haines v. Kerner, 404 U.S. 519, 520 (1972). That latitude, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
Liberally construed, Plaintiff's complaint attempts to invoke federal question jurisdiction pursuant to Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 FR 55292-01. See Pl.'s Compl. at 3. Other courts have already noted that this CDC Order does not automatically create federal question jurisdiction. See, e.g., Cholick v. Salvador, No. 1:20-CV-164, 2020 WL 6526351, at *2 (S.D. Tex. Oct. 8, 2020), report and recommendation adopted, No. 1:20-CV-00164, 2020 WL 6504446 (S.D. Tex. Nov. 5, 2020) (citing Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 813 (1986)). Further, the CDC Order does not create a private right of action either expressly or by implication. Id. (citing Casas v. Am. Airlines, Inc., 304 F.3d 517, 520 (5th Cir. 2002) (regulations cannot “conjure up a private cause of action that has not been authorized by Congress.”)).
The CDC Order created a mechanism for a defense against eviction proceedings. Id. Those proceedings against Plaintiff have already taken place in state court; to the extent Plaintiff is protected by the CDC Order, his claims should have been raised in state court. Id. As such, there is no federal question jurisdiction and this case should be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
IV. ORDER and RECOMMENDATION
For the reasons explained above, the Court ORDERS Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 2) be GRANTED and RECOMMENDS that this case be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. 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 (14) 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. 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 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further 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, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.