Opinion
SA-24-CV-447-FB (HJB)
07-29-2024
ANGELA D. DOWLING, Plaintiff, v. UNITED STATES ATTORNEY'S OFFICE, Defendant.
TO THE HONORABLE FRED BIERY, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns the status of the above case, which was automatically referred to the undersigned for disposition of the application to proceed in forma pauperis (“IFP”) and a review under 28 U.S.C. § 1915(e), pursuant to this Division's Standing Order of October 8, 2019. (See Text Entry dated May 1, 2024) In accordance with the Standing Order, the undersigned identified deficiencies in Plaintiff's pro se complaint and provided her an opportunity to amend her complaint to correct those deficiencies. (Docket Entry 3.) Plaintiff has not responded. I therefore recommend that the case be DISMISSED for failure to state a non-frivolous claim for relief.
In IFP cases like this one, § 1915 requires that the court “dismiss the case at any time” if it determines that “the action . . . is frivolous or malicious,” or that it “fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). A claim is frivolous when “the facts alleged are ‘fantastic or delusional scenarios' or the legal theory upon which a complaint relies is ‘indisputably meritless.'” Eason v. Thaler, 14 F.3d 8, 9 n.5 (5th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327-28 (1989)). To avoid dismissal for failure to state a claim, a plaintiff's complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While the complaint does not need detailed factual allegations, it must contain enough factual allegations to “raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. The plaintiff has an obligation to present more than labels, conclusions, and formulaic recitations of the elements to avoid dismissal. Id
In this case, Plaintiff's complaint appears only to give “notice” of “Threaten[ing] wellbeing w[ith] guns[,] Robbery, Vandalism, Theft,” and “10 day late rent.” (Docket Entry 1-1, at 2.) The complaint provides no additional information whatsoever. As such, it is both conclusory and frivolous.
Plaintiff is a serial filer of pro se civil cases in this District. She filed six cases in the Austin Division last year, all of which have been dismissed. See Nos. 1:23-CV-1255-RP (dismissed Dec. 1, 2023), 1:23-CV-1257-RP (dismissed Mar. 4, 2024), 1:23-CV-1263-RP (dismissed Nov. 21, 2023), 1:23-CV-1264-RP (dismissed Nov. 21, 2023), 1:23-CV-1323-RP (dismissed Dec. 27, 2023), 1:23-CV-1324-RP (dismissed Nov. 21, 2023). She has filed four cases in the San Antonio Division this year, two of which have been dismissed. See Nos. 5:24-CV-250-XR (dismissed June 28, 2024), 5:24-CV-252-JKP (dismissed Apr. 24, 2024).
As a pro se litigant, Plaintiff was entitled to an opportunity to amend her complaint so as to state a plausible, non-frivolous claim for relief. Cf. Neitzke, 490 U.S. at 329. Accordingly, the undersigned issued a Show Cause Order requiring her to amend her complaint on or before May 31, 2024. (Docket Entry 3.) Plaintiff has not responded. Accordingly, I recommend that this case be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a non-frivolous claim for relief.
Notice of Right to Object
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. 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, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).