Opinion
1:23-CV-00249-LY
03-31-2023
DARRYL EDWARD LOWE, Plaintiff v. CITY OF AUSTIN POLICE DEPARTMENT, Defendant
TO: THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE
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 is Plaintiff Darryl Lowe's Application to Proceed In Forma Pauperis. Dkt. 2. Because Lowe is requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of his claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Lowe's financial affidavit and determined that he is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Lowe'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). Lowe is further advised that, although he 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 Lowe's claims be dismissed under 28 U.S.C. § 1915(e). Therefore, service upon Defendants 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 Defendants.
II. REVIEW OF THE MERITS OF THE CLAIM
Because Lowe 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).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 20-21 (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). Under § 1915(e)(2) and the applicable legal standards, even construing Lowe's complaint liberally, the undersigned finds that his claims are frivolous and should be dismissed on that basis.
A complaint is frivolous “if it lacks an arguable basis in law or fact.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). In making a determination as to whether a claim is frivolous, the Court has “not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
A complaint fails to state a claim on which relief may be granted when the plaintiff does not “plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (citation, footnote, and quotation marks omitted).
Lowe, who was living in Austin in October 2022, asserts that an individual, whom he alleges he later learned was an undercover police officer, offered him money for sexual acts and then did not pay him. Lowe states that although he moved to San Diego, California two weeks later, the fact that he engaged in a sexual act and was not paid, was made known in San Diego's homeless community and among law enforcement. He asserts this alleged sharing of information violates his civil rights and he requests money damages.
First, Lowe cannot sue the Austin Police Department because it is not a legal entity capable of being sued. See Neal v. Flanery, No. A-20-CV-1217-RP, 2021 WL 164555, at *2 (W.D. Tex. Jan. 19, 2021) (finding that the Austin Police Department was not a legal entity capable of being sued); see also Potts v. Crosby Indep. School Dist., No. H-04-CV-2582, 2005 WL 1527657, at *6 (S.D. Tex. June 28, 2005) (finding that the Harris County Sheriff's Department lacked capacity to sue or be sued); Darby v. Pasadena Police Dep't, 939 F.2d 311 (5th Cir. 1991) (holding that police and sheriff's departments are governmental subdivisions without capacity for independent legal action). Therefore, Lowe's claims against the Austin Police Department are frivolous.
Second, 42 U.S.C. § 1983 prescribes redress for conduct by any person who, under color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Id.
In this case, Lowe has failed to identify a violation of his Constitutional rights. He asserts he was “sexually assaulted” by an individual in an unmarked car, but also agrees that he consented to engage in the sexual act(s) in exchange for money and drugs because he is an alcoholic. He maintains that only once he got to San Diego, did he come to believe that the individual in the car was an undercover Austin Police Department police officer. The failure to identify an underlying constitutional violation defeats his § 1983 claim. See, e.g., Albert v. City of Petal, 819 Fed.Appx. 200, 203 (5th Cir. 2020) (explaining that there could be no Monell claim without an underlying constitutional violation). Lowe's claims fail as frivolous on this additional basis.
III. ORDER AND RECOMMENDATION
The undersigned hereby GRANTS Lowe's Application to Proceed In Forma Pauperis. Dkt. 2. The undersigned RECOMMENDS the District Court DISMISS Lowe's cause of action with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The referral of this case to the Magistrate Judge is 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).