Paselk v. State of Texas et al

Filing 337

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 334 Report and Recommendation. It is, therefore, ORDERED that Plaintiff's pro se Motion to Proceed In Forma Pauperis [Doc. #333] is DENIED. Signed by Judge Ron Clark on 1/4/2014. (kls, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CAROL PASELK
Plaintiff,

V.
STATE OF TEXAS, ET AL.
Defendants.

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CASE NO. 4:12-CV-754
Judge Clark/Judge Mazzant

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28
U.S.C. § 636. On October 1, 2013, the report of the Magistrate Judge was entered containing
proposed findings of fact and recommendations that Plaintiff’s pro se Motion to Proceed In
Forma Pauperis [Doc. #333] be denied [Doc. #334]. On November 7, 2013, Plaintiff filed
objections [Doc. #336]. No response was filed by any defendant.
Plaintiff, pro se, filed this case against ninety-two defendants. The Magistrate Judge
entered a forty-five page report and recommendation that addressed all motions to dismiss
pending at that time. The Magistrate Judge recommended that all motions to dismiss be granted.
The Magistrate Judge also recommend dismissal of all claims against all named defendants. In
making that recommendation, the Magistrate Judge acknowledged that due to the court’s
caseload, a proper pre-screening was not done in this case and that the court should never have
allowed service on all of the defendants. The Magistrate Judge determined that, after review of
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the amended complaint, there were no plausible claims against any defendant and that the entire
case should be dismissed with prejudice.
On June 27, 2013, Plaintiff filed twenty-eight pages of objections to the recommended
dismissal of this case. It was clear to the court that Plaintiff feels that she has been wronged by
everything that happened to her in connection with the seizure of her horses, but the court noted
that her feeling does not make her claims appropriate for federal court. Plaintiff’s amended
complaint illustrated that Plaintiff was actually trying to challenge everything that happened to
her with regard to her prior criminal proceedings and the seizure of the horses. The Magistrate
Judge correctly found that this court has no jurisdiction to address these matters. Plaintiff was
convicted, the convictions have not been overturned, and she cannot sue private individuals
under 42 U.S.C. § 1983 based upon the facts she has alleged. After the court stripped away all of
the allegations regarding her prior criminal cases and the seizure of the animals, the court found
that Plaintiff did not have any possible plausible claim that would remain against Defendants.
In the matter now before the court, Plaintiff seeks leave to proceed on her appeal without
payment of any fees. The Magistrate Judge determined that Plaintiff lacks the financial resources
to prosecute her appeal. Despite that finding, the Magistrate Judge found that Plaintiff had an
obligation to demonstrate that her requested appeal raises non-frivolous issues for appeal. The
Magistrate Judge was correct that Plaintiff made no attempt to assert any non-frivolous issues for
appeal. The Magistrate Judge determined that her appeal was not taken in good faith.
When there is a challenge to the finding of a lack of good faith, the Fifth Circuit’s inquiry
into a litigant’s good faith “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

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The Magistrate Judge was correct in finding that the appeal was not taken in good faith
based upon what was submitted by Plaintiff. Her objections, which contain forty-one pages of
assertions in the case, also fail to demonstrate that the appeal is in good faith. Although the court
has sympathy for Plaintiff’s belief that she was wronged by the system, that fact alone is not
sufficient for her to show that she any non-frivolous claims. The Magistrate Judge spent
considerable time reviewing the various motions to dismiss and the claims being asserted in this
case and correctly determined that there were no plausible claims. Her objections merely recite
again all of the wrongs she believes have been inflicted upon her, but at no time has she
demonstrated that there is a plausible claim that allows her a vehicle to properly voice these
issues in this court. The court agrees with the Magistrate Judge that Plaintiff’s appeal is not
taken in good faith and her motion be denied.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by Plaintiff, this court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and
conclusions of the Court.
It is, therefore, ORDERED that Plaintiff’s pro se Motion to Proceed In Forma Pauperis
[Doc. #333] is DENIED.

So ORDERED and SIGNED this 4 day of January, 2014.

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Ron Clark, United States District Judge

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