Opinion
No. 3:03-CV-1373-N.
July 14, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
On June 19, 2003, plaintiff filed this unspecified civil action against the Dallas Morning News. He alleges that defendant defamed him on December 5, 1998, when the newspaper published an article relating to Gary "Babyface" Faison. (Compl. at 1.) No process has been issued in this case.
Plaintiff has filed a previous federal complaint against the Dallas Morning News. See Marshall v. Dallas Morning News, No. 3:03-CV-1172-G (N.D. Tex. 2003) (Compl. filed May 27, 2003). On June 6, 2003, United States Magistrate Judge Jeff Kaplan of this Court recommended that the Court dismiss the previous defamation action against the Dallas Morning News due to a lack of subject matter jurisdiction. See id. (Findings Recommendation of the United States Magistrate Judge dated June 6, 2003). On June 27, 2003, the District Judge accepted the findings of the Magistrate Judge and dismissed the action for lack of jurisdiction. See id. (Order and Judgment dated June 27, 2003).
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). That section provides for sua sponte dismissal, if the Court finds the complaint "frivolous or malicious" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Courts may appropriately dismiss an in forma pauperis action as frivolous, when the action "seek[s] to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the IFP plaintiff." Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). While Wilson may not be directly on point in that the Court dismissed plaintiff's previous defamation action for lack of jurisdiction rather than after litigation on the merits, the rationale for finding the instant action frivolous is as applicable in the instant context as it was in Wilson.
This Court has dismissed a previous action by plaintiff against the Dallas Morning News. That action stemmed from the same set of facts and occurrences that form the basis for the instant complaint. The defendants in the two cases are the same. Plaintiff has presented nothing which indicates that this Court now has subject matter jurisdiction over his state-law defamation claim. He simply relies upon the same set of facts as he did in his previous action. Although the dismissal of the previous action was for lack of subject matter jurisdiction, the Court finds that the plaintiff "unsuccessfully litigated" his defamation action at the federal level, at least from a procedural perspective. That appears sufficient to find the instant action frivolous under Wilson and 28 U.S.C. § 1915(e)(2).
Moreover, whether or not the instant action is frivolous within the meaning of Wilson and 28 U.S.C. § 1915(e)(2), the Court lacks jurisdiction over the instant state-law defamation claims for the same reasons stated by Judge Kaplan in plaintiff's previous action. See Marshall v. Dallas Morning News, No. 3:03-CV-1172-G (N.D. Tex. 2003) (recognizing that defamation is a state-law claim and finding no diversity of citizenship to support jurisdiction under 28 U.S.C. § 1332).
III. SANCTIONS
The Court possesses the inherent power "to protect the efficient and orderly administration of justice and . . . to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898,902 (5th Cir. 1993). Included in such inherent power is "the power to levy sanctions in response to abusive litigation practices." Id. Sanctions may be appropriate when a pro se litigant has a history of submitting multiple frivolous claims. See Fed.R.Civ.P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993). Pro se litigants have "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). "Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees — indeed, are not entitled to sue and appeal, period. Abuses of process are not merely not to be subsidized; they are to be sanctioned." Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989).
Since April 23, 2003, plaintiff has filed five federal civil actions. See Marshall v. City of Dallas, No. 3:03-CV-0847-P (N.D. Tex. 2003) (Compl. filed Apr. 23, 2003, that alleges false arrest and imprisonment in 1995); Marshall v. City of Mesquite, No. 3:03-CV-0854-G (N.D. Tex. 2003) (Compl. filed Apr. 23, 2003, that alleges false arrest in 1999); Marshall v. Dallas Morning News, No. 3:03-CV-1172-G (N.D. Tex. 2003) (Compl. filed May 27, 2003, that alleges defamation in 1998); Marshall v. Dallas Morning News, No. 3:03-CV-1373-N (N.D. Tex. 2003) (Compl. filed June 19, 2003, that alleges defamation in 1998); Marshall v. City of Mesquite/Dallas, No. 3:03-CV-1508-G (N.D. Tex. 2003) (Compl. filed July 3, 2003, that alleges theft, false arrest, and false imprisonment). Including the instant case, it has been recommended that two of these cases be dismissed as frivolous. Another has been dismissed for lack of federal jurisdiction. In view of the quick succession of filings, some of which are clearly duplicative, it appears prudent to warn plaintiff that abuses of the litigation process may result in sanctions, up to an including monetary sanctions and the prohibition of filing future cases except by leave of court.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS this action as frivolous pursuant to 28 U.S.C. § 1915(e)(2). It is further recommended that the District Court warn plaintiff that sanctions may be imposed for abusive litigation practices.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).