Opinion
1:24-CV-662-DII-ML
08-02-2024
KELLY MICHAEL VELAYAS, Plaintiff, v. THE STATE OF TEXAS, Defendant.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT 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's Application to Proceed In Forma Pauperis (Dkt. 2). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I. Request To Proceed IN FORMA PAUPERIS
The court has reviewed Plaintiff's financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff's request for in forma pauperis status. 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 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, although Plaintiff 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, this court has made a § 1915(e) review of the claims made in this complaint and is recommending Plaintiff's claims be dismissed without prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendant 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 Defendant.
II. Standard of Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the court 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). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
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).
III. Review of the Merits of the Claim
Plaintiff Kelly Michael Velayas, proceeding Pro se, purports to sue Defendant the State of Texas. Dkt. 1 at 1. Velayas contends that “Nazis, neo-Nazis, the Ku Klux Klan, the Aryan Brotherhood [] and . . . the Freemasons (AKA: Masons) are domestic terrorists.” Id. at 3. He requests all members of those organizations should be “placed into [f]ederal custody, and kept from all civilians, including those in jails.” Id. Additionally, he seeks that “any judge associated with any secret society,” including the Freemasons and “all college sororities,” be disallowed from practicing law as well as “that all images referencing the Confederate flag be recognized []: ‘Symbols of Domestic Terrorism.'” Id. Velayas further contends that “by severing the tie between the Masons and their street gang, the Aryan Brotherhood, and all their associated gangs, the Masons will not have support on the street to create and operate school shooters and mass murderers-so the school shooting epidemic that began in 1966-should end.” Id.
Attached to the Complaint is a 27-page affidavit in which Velayas asserts that “the Masons control most all higher institutions in our Federal Government [sic], including the AMA [American Medical Association].” Dkt. 1-2 at 7. He also suggests that school shooters and mass murders may often be connected to MKUltra, id. at 9, the illegal CIA experiments on humans to develop mindcontrol drugs. In the affidavit, Velayas states that “most all clubs and college sororities fall under the dominion of the Masons, and they practice [] and train in the art [] historically known as []‘Witchcraft.'” Id. The affidavit goes on like this.
Because Velayas's claims are fanciful, they lack an arguable basis in fact. See Flores v. Unknown, 703 Fed.Appx. 351, 352 (5th Cir. 2017) (affirming dismissal under 28 U.SC. § 1915(g) where plaintiff's claims were based on “fanciful” allegation that defendants employed “mind controlling computers”); Barnett v. Biden, No. 1:24-CV-124-DAE, 2024 WL 1080460, at *2 (W.D. Tex. Feb. 14, 2024), report and recommendation adopted, No. 1:24-CV-124, 2024 WL 1331786 (W.D. Tex. Mar. 28, 2024) (dismissing as frivolous complaint containing allegations of witchcraft) aff'd per curiam sub nom, Barnett v. Chacon, No. 23-50640, 2023 WL 8952594, at *1 (5th Cir. Dec. 28, 2023) (unpublished). Because Velayas's claims thus lack an arguable basis in fact, they are frivolous. Neitzke, 490 U.S. at 325. Because his claims are frivolous, “the court [must] dismiss the case.” 28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly, the undersigned will recommend the District Court dismiss the case.
“Unpublished opinions issued in or after 1996 are ‘not controlling precedent' except in limited circumstances, but they ‘may be persuasive authority.'” Watt v. New Orleans City, No. 23-30050, 2023 U.S. App. LEXIS 27453, at *5 n.7 (5th Cir. 2023) (quoting Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (emphasis added).
IV. Order and Recommendations
The undersigned hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2).
The undersigned RECOMMENDS the District Court DISMISS the Complaint (Dkt. 1). The referral of this case to the undersigned should now be canceled.
V. Warning
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 Battles 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 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 Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).