Opinion
SA-06-CA-250-RF.
June 29, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on April 13, 2006 (Docket No. 10). The Magistrate Judge recommended that Plaintiff's case be dismissed under 28 U.S.C. § 1915(e) (Docket No. 10 at 12-13). The Court construed Plaintiff's "Response to April 13th Report and Recommendation," filed on April 26, 2006, as his objections to the Memorandum and Recommendation (Docket No. 14). After due consideration, the Court is of the opinion that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY.
BACKGROUND
Plaintiff filed a motion for leave to proceed in forma pauperis on March 21, 2006 with attached "Declaration in Support of Request to Proceed In Forma Pauperis". Plaintiff named four individuals as defendants in his complaint. Two of the defendants are allegedly employed by West Texas AM University in Canyon, Texas, and the remaining two are allegedly employed by The Texas Higher Education Coordinating Board in Austin, Texas. Plaintiff alleges jurisdiction based on 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. §§ 1331, 1359, and 1337, in addition to other alleged statutory provisions. Plaintiff seeks an award of money damages based on violations of his First, Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendment constitutional rights.In essence, Plaintiff's claims relate to his business, Adjunct College/Waguespack Seminars. According to Plaintiff's Proposed Second Amended Complaint, Defendants "placed a cloud" on his business and ability to obtain employment. In addition, Plaintiff alleges that "[n]umerous alleged offenses, covert, oblique and explicit, have caused irreparable damages to Plaintiff's gainful employment in areas of expertise . . . and have placed almost insurmountable barriers to self employment through Adjunct College/Waguespack Seminars." Plaintiff alleges that the Defendants' acts are "laden with unconstitutional or otherwise unlawful dispositions . . . containing elements of malice, group think, hubris, fraud, deliberate misrepresentation, deliberate indifference and/or incompetence." The causes of action appear to relate to two sets of actions by the Defendants. First, Plaintiff alleges defendants' failure to authorize his business as a provider of training services created a cause of action. Second, Plaintiff alleges that Defendants denied and conspired to deny him admission to a university program. Plaintiff asserts eight causes of action as the basis of his complaint: (1) "Section 1983: Gross Negligence/Willful Indifference," (2) "Section 1983 and Sherman Antitrust Act: Malicious and Conspiratorial Interference with Government Grant and/or Contract(s) and/or Current or Prospective Business Relations," (3) "Section 1983: Harassment," (4) "Section 1983 Deliberate Infliction of Emotional Distress," (5) "Section 1983: Unconstitutional Denial or Admission," (6) "Section 1983: Collaborative Misfeasance to Defeat Due Process and to Unlawfully Exploit `Due Process' for Unlawful Objectives," (7) "Section 1983: Malicious Coercion to Self Defamation," (8) "Section 1985: Civil Conspiracy to Defeat Plaintiff's Liberty and Property Interests in Adjunct College/Waguespack Seminars and to Cause as Much Damage to His Reputation, Honor, Livelihood and Well Being as Politically Feasible." Plaintiff's requests for damages varied throughout his pleadings, ranging from $4 million to $11 million. Plaintiff's pleadings tend to ramble and contain superfluous facts, rendering his complaint unintelligible at times.
See Id. at 13-14.
Id. at 15.
Docket No. 24-1, Proposed Second Amended Complaint at 14.
Id.
Docket No. 24-1, Proposed Second Amended Complaint at 19-37.
The Magistrate Judge entered an Order to Show Cause on March 30, 2005, notifying Plaintiff that he needed to demonstrate a non-frivolous cause of action, or face denial of leave to proceed in forma pauperis. Plaintiff responded by filing a pleading captioned "statutes, opinions, and conditions subject to constitutional challenge." On April 13, 2006, the Magistrate Judge recommended that the lawsuit be dismissed as frivolous, pursuant to U.S.C. § 1915(e) because each and every claim lacks an arguable basis in law or fact. Plaintiff filed objections on April 26th, 2006, two days after the statutory ten day period. Although the objections were not timely filed, the Court, in its discretion, conducts a review of the Magistrate Judge's recommendation de novo.
See Docket No. 10, Report and Recommendation of the United States Magistrate Judge at 12.
STANDARD OF REVIEW
The Court reviews de novo the portions of the Magistrate Judge's Report and Recommendation to which a party files objections within ten days of service. The Local Court Rules for the Western District of Texas require that the "written objections . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Thus, the Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Report and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. Plaintiff has filed objections to the Magistrate's Report and Recommendation in this case. Therefore, the Court considers and addresses these objections under a de novo standard below.REASONING
The Court adopts the Magistrate's recommendation in its entirety. Plaintiff's objections contain a lengthy and somewhat incomprehensible discussion of his circumstances and allegations. The Court is considering only those objections that are specific and not frivolous, conclusory, or general in nature. Furthermore, Plaintiff's pro se pleadings were held to a less stringent standard than formal pleadings drafted by an attorney.
See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Plaintiff's first identifiable objection relates to the unconstitutionality of House Bill 1173. Plaintiff characterizes the legislation as unconstitutional because it "criminalizes credentials earned from academic institutions with federally recognized credentials that the [Texas Higher Education Coordinating Board] does not likewise recognize." Plaintiff then alleges that his online business was "closed down" by Dr. Paredes and the Texas Higher Education Coordinating Board. However, Plaintiff fails to supply any meritorious factual or legal basis for making this claim. A complaint is not automatically frivolous within the meaning of § 1915 simply because it fails to state a claim. Instead, a complaint is frivolous when it lacks "an arguable basis either in law or fact." The term "frivolous" when applied to a complaint, includes not only inarguable legal conclusions, but fanciful factual allegations. The Court may dismiss an in forma pauperis proceeding if it appears that claim has no arguable basis in law or fact. In this case, Plaintiff engages in incongruous tirades upon which no arguable basis in law or fact exists. The Court finds numerous fanciful factual allegations by the Plaintiff. For example, Plaintiff makes allegations regarding the "abusive activities in the minds of the defendants," but offers no factual basis for such a claim. Consequently, the Court is in agreement with the Magistrate Judge's finding that Plaintiff's claims are frivolous.
Docket No. 14, Plaintiff Response to April 13th Report and Recommendation at 13.
Id. at 13-14.
Id.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Neitzke, 490 U.S. at 325.; See Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001) (citing Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)) ("A complaint is frivolous if it lacks an arguable basis in law or fact, and a complaint lacks such a basis if it is based on an indisputably meritless legal theory").
Neitzke, 490 U.S. at 325.
Henson-El v. Rogers, 923 F.2d 51, 53; 28 U.S.C. § 1915(d); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989). See also Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993) ("Dismissal in an in forma pauperis petition under 28 U.S.C. § 1915(d) may be appropriate if the district court is `satisfied that the action is frivolous or malicious'" (quoting 28 § U.S.C. 1915(d))). The Prison Litigation Reform Act amended § 1915, moving the relevant frivolous dismissal provision from subsection (d) to new subsection (e)(2)(B). See Jackson v. Stinnett, 102 F.3d 132, 134 (5th Cir. 1996).
Docket No. 10, Report and Recommendation of the United States Magistrate Judge at 9.
Plaintiff's second objection relates to the Magistrate Judge's instruction that his 42 U.S.C. §§ and 1983 claim be underscored by a race issue. Plaintiff contends that his French-Basque/French-Creole-Acadian ancestry places him within the realm of a 42 U.S.C. § 1983 claim. Plaintiff was given ample notice and instruction in the Magistrate Judge's Order that the Plaintiff's motion for leave to proceed in forma pauperis be held in abeyance. The Magistrate Judge also ordered that Plaintiff show cause why his request to proceed in forma pauperis should not be denied as frivolous. Moreover, the Magistrate Judge provided detailed instructions on how to properly plead a civil rights complaint, but Plaintiff failed to cure the deficiencies in his pleadings. Aside from offering countless exhibits regarding his ancestry, Plaintiff did not plead facts that would support a civil rights complaint, or even a constitutional violation. For the above reasons, the Court is in agreement with the Magistrate's recommendation.
Docket No. 14, Plaintiff Response to April 13th Report and Recommendation at 13-14.
See Docket No. 3, Order.
Id. at 4.
Id. at 3-4.
CONCLUSION
Wherefore, the Court finds that the Magistrate's Report and Recommendation should be ADOPTED IN ITS ENTIRETY. Petitioner's case is DISMISSED WITHOUT PREJUDICE.