Opinion
No. 3:02-CV-1927-R
November 19, 2002
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 this court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
This is an unspecified civil action. Plaintiff resides in Dallas, Texas. Defendants are Johnny Bannister, a City of Dallas employee, and the City of Dallas ("City"). Plaintiff has been granted leave to proceed in forma pauperis. Service has not been issued.
Factual background:
Plaintiff argues Defendant Bannister, District Manager for the City of Dallas, committed perjury when he testified against Plaintiff in Plaintiffs employment discrimination case against the City. Plaintiff argues Defendant Bannister defamed him by allegedly testifying untruthfully. Plaintiff does not allege any facts against the City of Dallas.
The Court finds this case is frivolous and should be summarily dismissed under 28 U.S.C. § 1915 (e)(2). Plaintiff should also be sanctioned for abuse of the judicial process.
Discussion:
The terms of 28 U.S.C. § 1915 (e)(2)(B)(i) authorize a federal court to dismiss an action in which the Plaintiff is proceeding in forma pauperis before service if the court determines that the action is frivolous or malicious. Under this standard, a district court may review a complaint and dismiss sua sponte those claims premised on meritless legal theories and those which clearly lack any basis in fact. Denton v. Hernandez, 504 U.S. 25, 31, 112 S.C. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 109 S.C. 1827, 1831-32 (1989). A claim is frivolous if it lacks an arguable basis in law or 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 that 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). Plaintiffs allegations come within this doctrine and, accordingly, should be dismissed with prejudice.
Plaintiff alleges Defendant Bannister defamed him by allegedly testifying untruthfully during Plaintiffs employment discrimination trial. Plaintiff does not state the basis of federal jurisdiction.
The issue of subject matter jurisdiction should be addressed, sua sponte if necessary, at the inception of any federal action. Moody v. Empire Life Ins. Co., 849 F.2d 902, 904 (5th Cir. 1988). Unless otherwise provided by statute, federal court jurisdiction requires (1) a federal question arising under the Constitution, a federal law or treaty, or (2) complete diversity of citizenship between adverse parties and least $75,000 in controversy. See 28 U.S.C. § 1331, 1332.
The complaint relates to a defamation claim. If Plaintiff argues that his claim is a state law cause of action, it does not implicate any federal statutory or constitutional rights. Further, Plaintiff cannot rely on diversity of citizenship as a basis of jurisdiction. It is clear from the face of the complaint that Plaintiff and Defendants are citizens of the state of Texas.
Finally, if Plaintiff is arguing that Defendants violated his civil rights under 42 U.S.C. § 1983, his complaint must also fail. The Fifth Circuit holds that a witness who testifies at trial is absolutely immune under § 1983 from claims arising from that testimony. See Moore v. McDonald, 30 F.3d 616, 619 (9th Cir. 1994). Petitioner's complaint should therefore be dismissed as frivolous.
Sanctions:
The Court has an obligation to protect the orderly administration of justice and can issue injunctive relief to discharge that duty. Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985). Sanctions are appropriate when a pro se litigant has a history of submitting multiple frivolous claims. See Fed.R.Civ.P. 11; In re Green, 669 F.2d 779, 787 (D.C. Cir. 1981). Litigants who abuse 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." Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989). Appropriate sanctions include restrictions on the ability to file in forma pauperis without leave of court. Lay v. Anderson, 837 F.2d 231, 233 (5th Cir. 1988); Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir. 1986).
This complaint is the third frivolous complaint that Plaintiff has filed arising from his failed employment litigation against the City. In 2000, Plaintiff filed his initial employment discrimination suit against the City of Dallas alleging that while he was a City employee, the City wrongfully subjected him to tobacco smoke. See Reeves v. City of Dallas, No. 3:00-CV-1406-D (N.D. Tex. filed June 28, 2000). Plaintiff alleged that he had an asthma condition that constituted a disability under the Americans with Disability Act ("ADA") and that the City terminated him in violated the ADA. Plaintiff also alleged the City twice retaliated against him for filing charges with the EEOC regarding the tobacco smoke. On December 12, 2001, the District Court adopted the Magistrate Judge's recommendation dismissing Plaintiffs ADA claim and one retaliation claim. On May 13, 2002, the case proceeded to trial on Plaintiffs remaining retaliation claim. The jury returned a verdict for the City and judgment was entered that the case be dismissed.
On June 7, 2002, Plaintiff filed his first frivolous complaint arising from this employment litigation. See Reeves v. City of Dallas, No. 3:02-CV-1181-D (N.D. Tex. Filed June 7, 2002). Plaintiff filed suit alleging the City violated the Sherman Antitrust Act when it required him ride in City vehicles with other City employees that smoked tobacco. Plaintiff stated this tobacco smoke aggravated his asthma condition which caused him to miss work and take sick leave. Plaintiff alleged he was unlawfully terminated for taking medical leave and that he was retaliated against for filing EEOC complaints. On August 29, 2002, the District Court dismissed Plaintiffs suit as barred by res judicata.
On June 17, 2002, Plaintiff filed his second frivolous suit arising from his employment litigation against the City. See Reeves v. Fitzwater and the Northern District Court, No. 3:02-CV-1511-P (N.D. Tex. Filed June 17, 2002). Plaintiff filed a civil rights complaint against the Honorable Sidney Fitzwater, who presided over his employment litigation trial, and he also sued the Northern District of Texas. Plaintiff argued that Judge Fitzwater interfered with his right to appeal by denying Plaintiffs motion to proceed in forma pauperis on appeal and by denying Plaintiffs motion for certificate of appealability. On August 23, 2002, Judge Solis dismissed Plaintiffs complaint as frivolous.
On September 6, 2002, Plaintiff filed this frivolous suit against Defendant Bannister and the City of Dallas arising from Bannister's testimony in Plaintiffs employment trial.
Additionally, on October 21, 2002, Plaintiff filed suit alleging his rights were violated when a doctor's appointment was canceled because he arrive fifteen minutes late. See Reeves v. Churchill Evaluation Centers, et al., 3:02-CV-2297-N. A recommendation to dismiss the case for lack of jurisdiction is currently pending. Plaintiff has also filed four other cases that are either pending or are in the screening phase. This harassing and vexations conduct constitutes an abuse of the judicial system. Consequently, Plaintiff should be prohibited from filing any additional in forma pauperis complaints without first obtaining leave of Court.
These cases are: Reeves v. City of Dallas, No. 3:02-CV-1928-R (N.D. Tex. Filed September 6, 2002); Reeves v. Social Security Administration, No. 3:02-CV-1180-G (N.D. Tex. Filed June 6, 2002); Reeves v. Social Security Administration, No. 3:02-CV-2468-M (N.D. Tex. Filed November 12, 2002) and Reeves v. Dart Paratransit, No. 3:02-CV-1513-G (N.D. Tex. Filed July 17, 2002).
RECOMMENDATION:
The Court recommends that this case be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2). Plaintiff should also be required to obtain leave of court before filing any additional complaints in forma pauperis.