Opinion
A-18-CA-940-RP
11-29-2018
JESUS BALLI GARCIA (Travis Co. No. 18-26033) v. DONALD TRUMP, et al.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(f) 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 Magistrates Judges.
Before the Court is Plaintiff's complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the Travis County Correctional Complex. He sues President Trump, Texas Governor Abbott, and more than 100 other defendants. Many of the defendants named are "terroristas" residing in south Texas, other parts of Texas, and Mexico. The defendants include purported members of the criminal organization "Los Escorpios." Plaintiff holds the defendants responsible for the death of his son on January 22, 2018. Plaintiff additionally asserts the Los Escorpios are responsible for the sexual assault, injuries and deaths of adults and children. The only relief Plaintiff seeks is to "arrest the terroristas."
DISCUSSION AND ANALYSIS
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff's complaint, the court must construe plaintiff's allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner's pro se status does not offer him "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).
A prisoner does not have a constitutional right to have someone criminally prosecuted and has no private right of action to bring criminal charges. See Gill v. Texas, 153 Fed. Appx. 261, 262 (5th Cir. 2005); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990); see also Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999). Accordingly, Plaintiff's complaint should be dismissed.
Had Plaintiff sought a different type of relief, his complaint is still subject to dismissal. Most of the defendants the plaintiff names are not state actors, Plaintiff does not allege the President and Governor were personally involved, and Plaintiff fails to establish why venue would be proper in the Western District of Texas. --------
RECOMMENDATION
It is therefore recommended that Plaintiff's complaint be dismissed without prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief may be granted, then he will be prohibited from bringing any other actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). In the event this Report and Recommendation is accepted, adopted or approved, it is recommended that the Court direct the Clerk to e-mail a copy of its order and judgment the keeper of the three-strikes list.
OBJECTIONS
Within 14 days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
SIGNED on November 29, 2018.
/s/_________
MARK LANE
UNITED STATES MAGISTRATE JUDGE