Opinion
5-23-CV-01254-FB-RBF
01-25-2024
JAURICE ANTWAIN PAYNE, C/O 190 FLAIR DRIVE, SAN ANTONIO, TEXAS REPUBLIC [78227; Plaintiff, v. CPS ENERGY, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns Plaintiff Jaurice Antwain Payne's pro se amended civil complaint. See Dkt. No. 6. Originally, this case was automatically referred for disposition of Plaintiff Payne's IFP application, pursuant to 28 U.S.C. § 636(b) and the October 8, 2019, Standing Order regarding Court Docket Management of Cases Involving Applications to Proceed in Forma Pauperis for the San Antonio Division of the Western District of Texas. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, this case should be DISMISSED for failure to state a non-frivolous claim. See Fed.R.Civ.P. 41(b); 28 U.S.C. § 1915(e).
Factual and Procedural Background
Plaintiff Jaurice Antwain Payne initiated this action on October 4, 2023. Dkt No. 1. The Court granted Plaintiff Payne's IFP application on November 14, 2023, and ordered him to file a more definite statement within 30 days. Dkt. No. 3. On December 14, 2023, Payne submitted an amended complaint, but it was not received by the Court until January 4, 2024. See Dkt. No. 6. Coincidentally, earlier that same day, prior to the Court's receipt of the amended complaint, the Court had entered a Report and Recommendation recommending dismissal of the case, based in part on Payne's failure to timely respond to the November 14, 2023, order. See Dkt. No. 7. The district court re-referred this matter for disposition because this Court's Report and Recommendation was entered without the Court having considered the timely filed amended complaint. Dkt. No. 8. In the live Complaint (i.e., the amended complaint received on January 4), Payne purports to assert breach-of-contract and fiduciary-duty claims against CPS Energy. See Dkt. No. 6 (“Compl.”).
Section 1915(e) Analysis
Pursuant to 28 U.S.C. § 1915(e), the Court is required to screen any civil complaint filed by a party proceeding IFP to determine whether the claims presented are: (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant enjoying immunity from such relief. See 28 U.S.C. § 1915(e)(2)(B). 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). A claim is also legally frivolous when the court lacks subject matter jurisdiction over it. See Bibbs v. Harris, 578 Fed.Appx. 448 (5th Cir. Aug. 20, 2014); Nixon v. Attorney Gen. of Tex., 537 Fed.Appx. 512 (5th Cir. Jul. 31, 2013).
In evaluating whether a complaint states a claim under § 1915(e)(2)(B)(ii), courts apply the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011). To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)). These factual allegations need not be highly detailed but “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A conclusory complaint-one that fails to state material facts or merely recites the elements of a cause of action-may be dismissed for failure to state a claim. See id. at 555-56.
Dismissal of Payne's claims is appropriate under 28 U.S.C. § 1915(e) for failure to plead any non-frivolous claims. Payne's live complaint purports to assert breach-of-contract and fiduciary-duty claims against CPS Energy, in what appears to be a possible change from Payne's original complaint. See Compl. at 1; compare Dkt. No. 6 (contract and fiduciary-duty claims) with Dkt. No. 1 at 5 (alleging “security fraud”). The live complaint does not describe the factual circumstances or events giving rise to the claims, but states that Payne “tendered payment by way of performance to Defendant on four separate occasions” and “the defendant refused to send a rebuttal or respond to the explicit instructions, stating the reason(s) for non-performance of fiduciary duties.” Compl. at 5. Payne further alleges that “Defendant had the obligation to apply said performance to the principal's account properly. However, the plaintiff's rights were violated due to the Defendant failing to perform their fiduciary duties to honor and follow the written instructions to perform their obligations set forth, to transfer the principal balance to the principal account for continuous set-off each and every billing cycle as required by the contract.” Compl. at 6. The remainder of Payne's amended complaint consists of conclusory and unrelated remarks that do not support any claim for relief. See generally Compl.
As far as the Court can tell, Payne may possibly be alleging a breach-of-contract claim. If true, this Court would not have jurisdiction over any such claim because Payne has not pleaded that he and CPS Energy are citizens of different states. See 28 U.S.C. § 1332. In any case, despite Payne's filing of an amended complaint, it remains unclear what exactly Payne alleges occurred or how these statements support any cause of action, including one for breach of contract. Payne's amended complaint provides no additional factual background and consists primarily of vague, conclusory allegations and seemingly unrelated statements. See generally Complaint. Payne has not filed a statement of grounds giving rise to any claim that, when accepted as true, would be capable of stating a plausible claim for relief. See Fed.R.Civ.P. 8; Iqbal, 556 U.S at 678. The Complaint as currently pleaded should therefore be dismissed pursuant to § 1915(e).
Conclusion and Recommendation
For the reasons discussed above, it is recommended that this case be DISMISSED.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered 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. An objecting party 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.