Opinion
5-23-CV-00573-OLG-RBF
08-08-2023
ROBERT JAMES ESQUIVEL, Plaintiff, v. THE STATE OF TEXAS, OFFICE OF THE ATTORNEY GENERAL; CITY OF SAN ANTONIO, CITY OF SAN ANTONIO ATTORNEY; SAN ANTONIO POLICE DEPARTMENT, ROLANDO PACHENCO, OFFICER BADGE #594; Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Orlando Garcia:
This Report and Recommendation concerns Plaintiff Robert James Esquivel's pro se Application to Proceed in District Court Without Prepaying Fees or Costs and proposed civil complaint. See Dkt. Nos. 1, 2. All pretrial matters in this action have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 9. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, Esquivel's application to proceed in forma pauperis (“IFP”), Dkt. No. 2, is GRANTED. However, this case should be DISMISSED for failure to prosecute or failure to comply with Court orders, and for failure to state a non-frivolous claim. See Fed.R.Civ.P. 41(b); 28 U.S.C. § 1915(e).
Background
According to his proposed complaint, Dkt. No. 1, Plaintiff Esquivel was admitted to the Methodist Stone Oak Hospital for emergency detention and treatment on February 7, 2023. Officer Roland Pacheco with the San Antonio Police Department (“SAPD”) filled out an intake form explaining why emergency detention was justified. Esquivel alleges that Officer Roland's statements were false and defamatory, and they were intended to falsely convince hospital staff that Esquivel had a mental illness. Esquivel does not further describe the allegedly false statements.
The very next day, Esquivel filed suit in the District of Massachusetts against Officer Pacheco, the SAPD, the City of San Antonio, and the State of Texas. In his proposed complaint, Esquivel does not challenge the circumstances of his emergency detention and hospitalization. Instead, Esquivel appears to assert claims sounding in defamation under various state and federal statutes. Esquivel alleges that Officer Pacheco's statements on the medical report may ultimately jeopardize his ability to obtain a pilot's license at some unknown point in the future.
Esquivel's proposed complaint is dated the same day as his hospitalization. It is not explained how Esquivel was admitted to and detained at a hospital in San Antonio at around 9:20 p.m. on February 7, 2023, and yet was able to prepare and submit his proposed complaint and IFP application in Massachusetts later that same day. See also Dkt. No. 1-1 (civil cover sheet dated Feb. 7, 2023).
After this matter was transferred from Massachusetts, see Dkt. No. 6, the Court ordered Esquivel to amend his proposed complaint or show cause why the case should not be dismissed as frivolous. See Dkt. No. 11. The Court noted that, aside from state defamation law, none of the statutory grounds cited were viable. And even then, the defamation claims were likely barred by various deficiencies and immunity doctrines. The Court also pointed out several unexplained gaps in the IFP application. To facilitate a timely response, the Court then granted Esquivel's request for permission to file electronically. See Dkt. No. 10. But to date, Esquivel has filed no response.
IFP Application
The Court previously set forth the standard for waiving the initial filing fee and costs in its Order to Show Cause. See Dkt. No. 11 at 1-2; 28 U.S.C. § 1915(a)(1); Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988) (permitting waiver for undue financial hardship); Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969) (noting that whether to grant IFP status is discretionary). Those standards still apply here.
Due to certain deficiencies in his original IFP application, the Court ordered Esquivel to refile his IFP application with full and truthful explanations of his monthly income and expenses. See Dkt. No. 11 at 3. The Court explicitly warned that failure to comply may result in dismissal. Esquivel filed no response. Nevertheless, construing the many gaps in Esquivel's original IFP application in his favor, the Court, in its discretion, concludes that imposition of the full filing fee will likely cause undue financial hardship.
Accordingly, Esquivel's IFP application, Dkt. No. 2, is GRANTED.
Section 1915(e) Analysis
The Court previously set forth the law governing the process of screening IFP complaints pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 6 at 3-4. An action is “frivolous” where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Courts may also raise sua sponte and dismiss IFP actions for “affirmative defenses that are apparent from the record.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
A. Dismissal Is Proper for Failure to Prosecute or Comply with Court Orders.
Esquivel's failure to timely respond to the Court's Order to Show Cause is grounds for dismissal. Courts have authority to dismiss any action for failure to prosecute or comply with court orders. See Fed.R.Civ.P. 41(b) (dismissal by motion); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (discussing the “inherent authority to dismiss an action sua sponte” for failure to prosecute or comply with court orders); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (same). The Court previously ordered Esquivel to refile his IFP application and amend his complaint in response to several concerns, explicitly warning him that failure to respond could result in dismissal. See Dkt. No. 11 at 9. The deadline for Esquivel to respond was July 13, 2023. Despite those instructions, Esquivel has filed no response. The Court afforded ample time to comply and even instructed the Clerk's office to email a copy of the Order to Esquivel's email address. The Court further observes that Esquivel never followed through with the registration process for e-filing. Although dismissal is generally an extreme sanction for failure to prosecute or comply with court orders, that sanction is warranted here.
B. Dismissal Is Appropriate for the Reasons Stated in the Show Cause Order.
The Court previously set forth several reasons why Esquivel's claims likely fail. See Dkt. No. 11. Because Esquivel filed no response, those reasons are unchallenged, and the Court need not restate them. Esquivel asserts no viable claims or theories of liability against the SAPD, the City of San Antonio, or the State of Texas. And because Esquivel never amended his complaint to assert claims under 42 U.S.C. § 1983, the Court need not evaluate the sufficiency of Esquivel's allegations any further. Esquivel's statutory claims are legally frivolous for the reasons previously stated in the Court's Order to Show Cause, Dkt. No. 11, which is incorporated in full here.
The only potentially viable claim raised in Esquivel's proposed complaint is one for defamation against Officer Pacheco under state law. See Tex. Civ. Prac. & Rem. Code § 73.001. But as the Court explained, that claim is also deficient because Esquivel's alleged damages are entirely speculative, and the defense of official immunity likely shields Officer Pacheco from liability in such situations. See, e.g., In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (“[T]he plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se.”); Campbell v. Clark, 471 S.W.3d 615, 625 (Tex. App.-Dallas 2015, no pet.) (noting that only opinions that “assert an objectively verifiable fact” are actionable); City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App.-Houston [1st Dist.] 1995, no writ) (defamation unavailable for statements on probable cause affidavit made in good faith). Because Esquivel never amended his complaint to clarify the defamatory statements, plead non-hypothetical damages, or address exceptions to the defense of official immunity, those claims are barred and should be dismissed.
Conclusion and Recommendation
For the reasons discussed above, IT IS ORDERED that Esquivel's IFP application, Dkt. No. 2, is GRANTED. However, it is further recommended that this case be DISMISSED with prejudice as frivolous under 28 U.S.C. § 1915(e). Alternatively, this case should be DISMISSED without prejudice for failure to prosecute or comply with court orders.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
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 by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections 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. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination 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 timely file 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 factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.