Gray, Sr. v. Anderson et al

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATIONS 3 denying Plaintiff's Motion to Proceed In Forma Pauperis 2 . Signed by District Judge William H. Barbour, Jr on 8/11/16.(TLC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SIR RICHARD ERIN GRAY, SR.
VS.

PLAINTIFF
CIVIL ACTION NO. 3:16-cv-550-WHB-JCG

DEVON ANDERSON, ET AL.

DEFENDANTS
OPINION AND ORDER

This

cause

is

before

the

Court

on

the

Report

and

Recommendation (“R&R”) of United States Magistrate Judge John C.
Gargiulo, recommending that Plaintiff’s Motion to Proceed In Forma
Pauperis be denied. Having considered the R&R1, the other pleadings
in this case, as well as supporting and opposing authorities, the
Court finds the findings made by Judge Gargiulo in the R&R are not
clearly erroneous or contrary to law. The Court additionally finds
this case should be dismissed, without prejudice, pursuant to 28
U.S.C. § 1915(e)(2)(B) because it is both frivolous and it fails to
state a claim upon which relief can be granted.

I.

Factual Background and Procedural History

Sir Richard Erin Gray, Sr. (“Gray”) filed a lawsuit in this
Court against the State of Texas and twenty-three other Texasrelated entities and individuals including the City of Houston, the

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Plaintiff was required to file his objections to the R&R
on or before August 1, 2016. No objections were filed.

Houston

Police

Officers

Union,

the

Angelridge

Apartments

of

Houston, and the Mental Health and Mental Rehab Foundation of
Texas.

According to Gray, the named defendants have violated at

least sixty (60) federal criminal statutes and constitutional
amendments with respect to both him and “society at large”.
Through his Complaint, Gray seeks over 2.1 million dollars in
actual and punitive damages.
The matter came before United States Magistrate Judge John C.
Gargiulo on Gray’s Motion to Proceed In Forma Pauperis.

After

reviewing the Complaint, Judge Gargiulo found it was completely
lacking “of any factual allegation from which a plausible, coherent
cause of action could be inferred”, and that the criminal statutes
cited by Gray did not create private rights of action.

See R&R

[Docket No. 3], 2. Based on these findings, Judge Gargiulo entered
a Report and Recommendation, recommending that Gray’s Motion to
Proceed In Forma Pauperis be denied on the grounds that it “fails
to allege any facts from which a plausible cause of action could be
inferred.”

Id. at 1.

See also 28 U.S.C. § 1915(e)(2)(B)(ii)

(requiring the dismissal of cases upon the determination that the
complaint fails to state a claim upon which relief may be granted).

II.

Discussion

A district judge’s review of a magistrate judge’s ruling on
a non-dispositive motion is governed by Rule 72(a) of the Federal

2

Rules of Civil Procedure, which provides:
When a pretrial matter not dispositive of a party’s claim
or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a
written order stating the decision. A party may serve
and file objections to the order within 14 days after
being served with a copy.
A party may not assign as
error a defect in the order not timely objected to. The
district judge in the case must consider timely
objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.
FED. R. CIV. P. 72(a).

See also 28 U.S.C. § 636(b)(1)(A) (“A judge

of the court may reconsider any pretrial matter ... where it has
been shown that the magistrate judge’s order is clearly erroneous
or contrary to law.”); Merritt v. International Bhd. of Boiler
Makers, 649 F.2d 1013, 1017 (5th Cir. 1981) (“Pretrial orders of a
magistrate under § 636(b)(1)(A) are reviewable under the ‘clearly
erroneous and contrary to law standard’; they are not subject to a
de novo determination as are a magistrate’s proposed findings and
recommendations under § 636(b)(1)(B).”). Thus, upon a timely filed
objection, a district judge may modify or set aside a magistrate
judge’s ruling if that ruling is clearly erroneous or contrary to
law.

FED. R. CIV. P. 72(a).
Here, Judge Gargiulo recommended the denial of Gray’s Motion

to Proceed In Forma Pauperis based on Gray’s failure to allege any
facts from which a plausible cause of action could be inferred.
See R&R, 1.

On review, the Court finds Judge Gargiulo’s findings

and recommendation is neither clearly erroneous nor contrary to

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law.

See

e.g.

Denton

v.

Hernandez,

504

U.S.

25,

32

(1992)

(explaining that an action has no arguable factual basis when the
allegations are delusional or rise to the level of the irrational
or “wholly incredible.”).

In addition, because Gray is a citizen

of Georgia, the defendants are likely all citizens of Texas, and
there is no allegation of wrong-doing having been committed in the
State of Mississippi, it does not appear that venue would be proper
in the Southern District of Mississippi or that this Court could
exercise personal jurisdiction over the defendants.

For these

reasons, the Court adopts Judge Garguilo’s recommendation that
Gray’s

Motion

to

Proceed

In

Forma

Pauperis

be

denied,

and

additionally finds that this case should be dismissed pursuant to
28 U.S.C. § 1951(e) because the Complaint is completely frivolous
and fails to state any claim on which relief may be granted.

See

28 U.S.C. § 1951 (e)(2)(B)(i)&(ii)(providing that “the court shall
dismiss the case at any time if the court determines that the
action or appeal (i) is frivolous or malicious; [or] (ii) fails to
state

a

claim

on

which

relief

may

be

granted”);

Peters

v.

Klevenhagen, 1995 WL 581581, at *1 (5th Cir. Aug. 25, 1995)
(explaining that a “complaint filed in forma pauperis may be
dismissed as frivolous pursuant to § 1915 if it has no arguable
basis in law or fact.”).

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III.

Conclusion

For the foregoing reasons:
IT IS THEREFORE ORDERED that the Report and Recommendation of
the Magistrate Judge [Docket No. 3] is hereby adopted. Plaintiff’s
Motion to Proceed In Forma Pauperis [Docket No. 2] is hereby
denied.
IT IS FURTHER ORDERED that this case is hereby dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)&(ii) because the Complaint
is completely frivolous and fails to state any claim on which
relief may be granted.

An Order of Dismissal dismissing this case

without prejudice shall be entered this day.
SO ORDERED this the 11th day of August, 2016.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

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