Opinion
1:23-CV-01257-RP
03-04-2024
ANGELA D DOWLING, Plaintiff v. UBER TECHNOLOGIES INC., Defendant
HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
The undersigned 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 are Plaintiff Angela Perez Dowling's Application to Proceed In Forma Pauperis, Dkt. 2, and Motion for Permission to File Electronically, Dkt. 3. Because Dowling is requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of her claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Dowling's financial affidavit and determined Dowling is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Dowling's request for in forma pauperis status, Dkt. 2. 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 that 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). Dowling is further advised that, although she 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 that Plaintiff's claim be dismissed under 28 U.S.C. § 1915(e). Therefore, service upon Defendant 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 Defendant.
II. REVIEW OF THE MERITS OF THE CLAIM
Because Dowling has been granted leave to proceed in forma pauperis, the undersigned 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.
Additionally, “[i]f the Court determines at any time that it lacks subject-matter jurisdiction, the Court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). The party seeking to invoke the power of the Court bears the burden to establish federal jurisdiction. Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 219 (5th Cir. 2012) (citing Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006)). The Court will not assume it has jurisdiction; “the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference.” Chandler v. United States, 338 F.Supp.3d 592, 598 (N.D. Tex. 2018) (citing Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988)).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (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).
Dowling brings a complaint for “identity theft or fraud use on [her] account” and “[s]uspicious activity on [her] account and bank account.” Dkt. 1, at 1. Dowling's complaint provides no further factual background, such as what the alleged identity theft or fraud entailed or how that activity is connected to Defendant. While Dowling's Civil Cover Sheet indicates that the basis of jurisdiction is “U.S. Government Plaintiff,” Dkt. 1-1, at 1, she does not support this assertion with any relevant facts.
Where, as here, a plaintiff's complaint is “insubstantial, it is insufficient to invoke the jurisdiction of a federal court.” Dilworth v. Dall. Cnty. Cmty, Coll. Dist., 81 F.3d 616, 617 (5th Cir. 1996); see Denton v. Hernandez, 504 U.S. 25, 32 (1992) (explaining that factually frivolous complaints involve allegations which are “‘clearly baseless' ... whether or not there are judicially noticeable facts available to contradict them” (quoting Neitzke, 490 U.S. at 327)); Bell v. Hood, 327 U.S. 678, 682-83 (1946). That is, federal courts lack subject matter jurisdiction over claims which are “insubstantial, implausible, foreclosed by prior decisions ..., or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998).
Based on the foregoing, the undersigned finds that Dowling's complaint is both frivolous and fails to state a claim on which relief may be granted by this Court. Dowling's complaint should be dismissed.
III. ORDER AND RECOMMENDATION
The undersigned hereby GRANTS Dowling's Application to Proceed In Forma Pauperis, Dkt. 2. The undersigned RECOMMENDS the District Court DISMISS Dowling's complaint, Dkt. 1, pursuant to Federal Rule of Civil Procedure 12(h)(3), or alternatively, 28 U.S.C. § 1915(e)(2)(B). The Court FINALLY ORDERS Dowling's request for permission to file electronically in this matter, Dkt. 3, is GRANTED. Dowling is instructed to review the Court's Administrative Policies and Procedures for Electronic Filing and is reminded that under Section 6(h) of those Policies and Procedures, “if it is determined by the Court that the Filing User is abusing the privilege to electronically file documents or is consistently error prone in electronic filing, the Filing User's registration may be rescinded.”
The referral of this case to the Magistrate Judge 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).