Opinion
1:23-CV-1048-DII-ML
10-10-2023
ERNEST ADIMORA-NWEKE, Plaintiff, v. STEVEN C. MCGRAW, Director of Texas Department of Public Safety, TEXAS DEPARTMENT OF PUBLIC SAFETY, and HON. JUDGE LYNN HUGHES, official capacity, Defendants.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
MARK LANE UNITED STATES MAGISTRATE JUDGE
The Magistrate Court submits this 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's Application to Proceed In Forma Pauperis (Dkt. 3) and Motion to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (Dkt. 6). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I. Introductory Note
At the outset, “[i]t [] bears mention that [Plaintiff] has an extensive history of persistent abuse of the judicial system and bad faith litigation practice in the Southern District of Texas. Adimora-Nweke v. McGraw, No. 4:22-cv-00765, 2022 U.S. Dist. LEXIS 104590, at *4 (S.D. Tex. 2022). He may not practice there. Apheaus Ohakweh, et al., v. Harris Health Sys., et al., No. H-20-1651 (S.D. Tex. Jun. 26, 2020), ECF No. 12.
II. REQUEST TO PROCEED In Forma Pauperis
The court has reviewed Plaintiff's financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff'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). Plaintiff is further advised, although Plaintiff 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, this court has made a § 1915(e) review of the claims made in this complaint and is recommending Plaintiff's claims be dismissed with prejudice under 28 U.S.C. § 1915(e). 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.
III. Standard of Review
Because Plaintiff 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. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
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). Furthermore, although Plaintiff is representing himself Pro se, he is a licensed attorney, and “counsel is held to a higher standard than a Pro se litigant.” Wright v. McCain, 703 Fed.Appx. 281, 284 (5th Cir. 2017) (“‘it would be rather peculiar to treat a trained attorney's error more leniently than' that of a pro se litigant”) (quoting United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002)).
IV. Review of the Merits of the Claim
A. Claim Against Judge Hughes
Plaintiff purports to sue Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas (“SDTX”) “in his official capacity.” Dkt. 7 at 4. He “seeks a Bivens injunction, or alternatively, 28 U.S.C. § 1651 writ injunction, or FRCP Rule 60(d) relief.” Id. Judge Hughes barred Plaintiff from filing cases in the Southern District of Texas and denied Plaintiff admission there. Id. at 4-5.
The court previously took judicial notice that “[b]eacuse he has abused his credentials, the full [U.S. District Court for the Southern District of Texas] has denied [Plaintiff's] admission to the Southern District several times” and that “[h]e has been sanctioned for recalcitrance.” Dkt. 5 at 2 n.2. The court takes further judicial notice that Plaintiff “may not practice in” the Southern District of Texas and may not file cases there. Id.
The court need not delve deeply into Plaintiff's flawed claims against Judge Hughes because as an Article III judge, he has absolute immunity from this lawsuit. Black v. Griffin, 638 Fed.Appx. 371, 373 (5th Cir. 2016). Accordingly, the undersigned will recommend dismissal of Plaintiff's claims against Judge Hughes with prejudice.
B. Standing to Bring Claim Against Steven McGraw and Texas DPS
1. This lawsuit's background
Plaintiff's lawsuit stems from his 2018 arrest for suspected driving while intoxicated. Dkt. 7 at 14. During the arrest, he received a statutory warning regarding the status of his driver's license contained on a DIC-24 form. Id. The Texas Department of Public Safety (“DPS”), which McGraw leads, promulgates the DIC-24 form, and law enforcement agencies around the state use it when effecting arrests based on suspicion of impaired driving. See id. In conjunction with his arrest and relying on a DIC-24 form, a Houston police officer confiscated Plaintiff's driver's license. Id. Later, Plaintiff's driving privilege was suspended. Id.
Plaintiff contends that the DIC-24 form is defective because it does not contain the text of Texas Transportation Code §724.015(a)(6). Id. at 15. Plaintiff argues that under the Constitution's and the Texas Constitution's unreasonable search and seizure, equal protection, and due process provisions, the DIC-24 form “must meet strict compliance” but does not because it does not contain §724.015(a)(6)'s text. Id.
This is not the first time Plaintiff asserted his DIC-24-related claims. He twice sued McGraw and DPS, along with other defendants, in actions the defendants removed from state court. Id. at 16, 18. A federal district court in Houston dismissed both lawsuits with prejudice. Adimora-Nweke v. McGraw, 2022 U.S. Dist. LEXIS 104590, at *5; Adimora-Nweke v. McGraw, No. 4:20-cv-04149, 2021 U.S. Dist. LEXIS 230726, at *5 (S.D. Tex. 2021).
As he does here, in the SDTX suits, “Plaintiff allege[ed] that the DIC-24 form is unconstitutional on its face as applied because it is not in strict compliance with Texas Transportation Code 724.015.” Adimora-Nweke v. Yarbrough-Smith, 2021 U.S. Dist. LEXIS 231593, at *3. “Specifically, Plaintiff argue[ed] that the DIC-24 form is ‘missing Texas Transportation Code Section 724.015(6).'” Id. 2. Plaintiff lacks standing
The court has a duty to consider jurisdictional bars sua sponte. Wilkins v. United States, 143 S.Ct. 870, 876 (2023). Constitutional standing is a question of subject matter jurisdiction. Norris v. Causey, 869 F.3d 360, 366 (5th Cir. 2017) (citing Sprint Commc'ns. Co. v. APCC Servs. Inc., 554 U.S. 269, 273 (2008)). “To establish Article III standing, a plaintiff must show (1) an injury in fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision.” Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015). A plaintiff who seeks to challenge a governmental practice must allege specific, concrete facts demonstrating that the challenged practice harm him, and that he personally would benefit in a tangible way from the court's intervention. Warth v. Seldin, 422 U.S. 490, 508 (1975).
To avoid reinventing the wheel, the court borrows from our SDTX sister court's analysis of Plaintiff's claim:
Plaintiff argues he was harmed by the DIC-24 form that is missing Texas Transportation Code Section 724.015(6). However, Texas Transportation Code Section 724.015(6) only applies to individuals who do not have a driver's license. Texas Transportation Code Section 724.015(6) did not apply to Plaintiff because he had a driver's license at the time of his arrest. Thus, Plaintiff cannot be injured by a lack of notice regarding Texas Transportation Code Section 724.015(6)....
Without an injury, Plaintiff fails to establish standing.
“[T]he Court cannot redress Plaintiff's criticism of the DIC-24 form because the reason for Plaintiff's license suspension had nothing to do with a portion
of the statute that does not apply to Plaintiff.... Plaintiff's request for a declaration or injunction would be futile as neither would change the inapplicability of the language in the DIC-24 form to Plaintiff.Adimora-Nweke v. Yarbrough-Smith, 2021 U.S. Dist. LEXIS 231593, at *5 (citations and quotations omitted) (emphases added).
The undersigned recommends dismissal of Plaintiff's claims against McGraw and DPS for the same reason that our sister court dismissed Plaintiff's identical claims in the Southern District of Texas: he lacks standing.
V. Conclusion
Plaintiff is attempting to bring the same twice-dismissed lawsuit in a new court. He may not. Plaintiff's lawsuit reflects fundamental misunderstandings of basic principles of American jurisprudence. This is troubling because Plaintiff is an attorney licensed to practice law.
To sum up, Plaintiff attempts to sue a federal judge for meting out discipline that offended Plaintiff. But the judge is immune from suit. Plaintiff also attempts to reassert his claim that a DPS-promulgated form is constitutionally defective, but again he is thwarted and for the same reason he was in his previous actions: he fails to meet the constitutional minimum of standing.
“The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is [] restricted to litigants who can show ‘injury in fact' resulting from the action which they seek to have the court adjudicate.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 473 (1982). Because Plaintiff cannot show an injury in fact or that this court could grant him relief, the undersigned recommends dismissal of this lawsuit for lack of subject matter jurisdiction.
VI. Order & Recommendations
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 3) and Motion to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (Dkt. 6). The Magistrate Court RECOMMENDS the District Court DISMISS WITH PREJUDICE Plaintiff's Amended Complaint (Dkt. 7) pursuant to 28 U.S.C. § 1915(e)(2)(B) and for lack of subject matter jurisdiction.
The undersigned ADMOMISHES Plaintiff not to file obviously frivolous lawsuits that lack a basis in law. The undersigned, again, borrows from the Hon. Charles Eskridge and warns: “Plaintiff Ernest Adimora-Nweke is ADMONISHED that if he continues to abuse the process of this Court or otherwise engage in bad faith litigation practices, a preclusion order barring further unauthorized practice, including as a pro se litigant, will be entered.” Adimora-Nweke v. McGraw, 2022 U.S. Dist. LEXIS 104590, at *5 (italics added, capitals in original).
Plaintiff is FURTHER ORDERED not to email any judge or other court employee regarding this case. Federal courts are courts of record and, as such, submissions should be made via CMECF. Should Plaintiff's behavior continue, the undersigned will recommend that the U.S. District Court for the Western District of Texas follow the Southern District's lead and prohibit him from filing cases in it.
Plaintiff emailed the undersigned nearly a dozen times in one month. Those emails are attached as Exhibits A-K.
“Because he abused his credentials, the full court has denied Adimora-Nweke's admission to the Southern District several times. He has been sanctioned for his recalcitrance. He may not practice in this district and must stop filing cases in it.” Apheaus Ohakweh, et al., v. Harris Health Sys., et al., No. H-20-1651 (S.D. Tex. Jun. 26, 2020), ECF No. 12.
The referral of this case to the Magistrate Court should now be canceled.
VII. Warning
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 Battles 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 (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 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 Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
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