Opinion
1:24-CV-00323-DII-SH
04-05-2024
DONALD RICHARD KARR JR., Plaintiff v. PRESIDENT JOSEPH R. BIDEN, UNITED STATES OF AMERICA, DEPARTMENT OF VETERANS AFFAIRS, ET AL. Defendants
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE DISTRICT COURT
Before the Court are Plaintiff's Petition for Writ of Mandamus (Dkt. 1) and Application to Proceed In Forma Pauperis (Dkt. 2), both filed March 25, 2024. The District Court referred this case to this Magistrate Judge for disposition of the Application and Report and Recommendation as to whether the case should be dismissed as frivolous under 28 U.S.C. 1915(e) pursuant to Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas and the Court Docket Management Standing Order for cases assigned to Austin Docket II.
I. In Forma Pauperis Status
Under 28 U.S.C. § 1915(a)(1), a district court may permit a plaintiff to file an action in federal court “without prepayment of fees or security thereof” if the plaintiff shows by affidavit that he is unable to pay such fees or security. “A district court's determination of whether a party may proceed in forma pauperis must be based solely upon economic criteria.” Gibbs v. Jackson, 92 F.4th 566, 569 (5th Cir. 2024). To determine whether a particular order causes “undue financial hardship,” a court must examine the financial condition of the in forma pauperis applicant. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988).
After reviewing Plaintiff's Application, the Court finds that Plaintiff cannot pay the filing fee without experiencing undue financial hardship. Accordingly, the Court GRANTS Plaintiff in forma pauperis status. This in forma pauperis 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). Plaintiff is further advised that although he has been granted leave to proceed in forma pauperis, a Court may 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 Court has conducted a § 1915(e) review of the claims in the Complaint and recommends that Plaintiff's claims should be dismissed under 28 U.S.C. § 1915(e). Therefore, service on Defendant should be withheld pending the District Court's review of the recommendations in this report. If the District Court declines to adopt the recommendations, service should be issued on Defendant at that time.
II. Section 1915(e)(2) Frivolousness Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the Court is required by standing order to review his Complaint under § 1915(e)(2). A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action is (1) frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). While pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), a plaintiff's pro se status offers “no 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).
Plaintiff attempts to bring a Petition for Mandamus against the United States of America, the President of the United States, the Department of Veterans Affairs (“VA”), the Secretary of the Department of Veterans Affairs, and hundreds of other governmental and private entities and individuals. Dkt. 1. Plaintiff alleges that he is a veteran of the United States Army and that the VA wrongfully denied his disability claims beginning in 1973. Id. at 2-4. Plaintiff argues that the VA erroneously awarded him a 30% disability rating when he should have been awarded a 100% disability rating. Id. at 4. Besides claiming that Defendants have “stolen” his benefits, Plaintiff also alleges that Defendants are part of a criminal conspiracy and have attempted to murder him. Id. at 2. Plaintiff's 68-page Petition alleges criminal conspiracy, fraud, Racketeer Influenced and Corrupt Organizations Act (“RICO”) violations, constitutional violations, identity theft, and defamation. Plaintiff seeks monetary damages and attorneys' fees, and asks the Court to order the VA to award him 100% VA disability benefits and revoke the college degrees of Donald Lee Karr and Donald Ray Karr.
Plaintiff's Petition is duplicative of an unsuccessful Petition for Mandamus he filed in the Western District of Texas nearly nine years ago. In Karr v. United States., No. 5:15-CV-00317 (W.D. Tex. Sept. 23, 2015) (“2015 Suit”), Plaintiff asserted the same claims and allegations against many of the same defendants. The Honorable Robert Pitman dismissed the 2015 Suit with prejudice after determining that the Court lacked jurisdiction over “Petitioner's request for recalculation of his service-connected disability status,” and that his other claims were either frivolous or failed to state a plausible claim for relief. 2015 Suit, Dkt. 13 at 6-9. Plaintiff's Petition is also duplicative of another suit he filed recently in the Waco Division of the Western District of Texas, which is pending before the Honorable Alan D. Albright. Karr v. Fall Creek Apts. LLC, the United States of America, President of the United States Joseph R. Biden, et al., No. 6:23-CV000867-ADA-DTG (Dec. 19, 2023).
An action may be dismissed as frivolous or malicious if it duplicates claims raised by the same plaintiff in previous or pending litigation. Pittman v. Moore, 980 F.2d 994-95 (5th Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 849-50 (5th Cir. 1989). This is because “pauper status does not entitle a plaintiff to avoid the ordinary rules of res judicata.” Pittman, 980 F.2d at 994. “When declaring that a successive in forma pauperis suit is ‘malicious' the court should insure that the plaintiff obtains one bite at the litigation apple but not more.” Id. at 995.
It is “malicious” for a pauper to file a lawsuit that duplicates allegations of another pending federal lawsuit by the same plaintiff. Id. Because this suit is duplicative of two suits Plaintiff previously filed, it is malicious, and this Magistrate Judge recommends that it should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i).
III. ORDER
The Court GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2).
IV. RECOMMENDATION
This Magistrate Judge RECOMMENDS that the District Court DISMISS with prejudice Plaintiff Donald Richard Karr's lawsuit as malicious under 28 U.S.C. § 1915(e)(2)(B)(i).
The Court further RECOMMENDS that the District Court WARN Plaintiff that if he continues to file frivolous or duplicative lawsuits, the District Court may impose sanctions against him, including monetary sanctions and a pre-filing bar.
It is ORDERED that the Clerk remove this case from this Magistrate Judge's docket and RETURN it to the docket of the Honorable District Court.
V. 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 (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 on 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); 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).