Burgess v. US Department of Education et al

Filing 33

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 30 Report and Recommendations. It is ORDERED that Plaintiff's Second Amended Complaint (Dkt. #25) is DISMISSED, and each and every of Plaintiff's claims against each and every Defendant are DISMISSED with prejudice. All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil action. Signed by Judge Amos L. Mazzant, III on 6/19/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

NATHAN EARL BURGESS
v.
US DEPARTMENT OF EDUCATION, ET
AL.

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§
§
§
§

Civil Action No. 4:15-CV-507
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF 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 Magistrate Judge pursuant to 28 U.S.C. § 636.
On April 21, 2017, the report of the Magistrate Judge (Dkt. #30) was entered containing proposed
findings of fact and recommendations that Plaintiff Nathan Burgess’s Second Amended Complaint
(Dkt. #25) be dismissed. Having received the report and recommendation of the Magistrate Judge
(Dkt. #30), having considered Plaintiff’s objections (Dkt. #31), and having conducted a de novo
review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and adopts the Magistrate Judge’s report (Dkt. #30) as the findings and conclusions of the
Court.
RELEVANT BACKGROUND
Pro se Plaintiff Nathan Burgess filed the present lawsuit asserting various claims against
over seventy named Defendants and one million John Doe Defendants (Dkt. #1; Dkt. #25).
Plaintiff’s Second Amended Complaint (Dkt. #25) spans sixty-five pages and includes nearly one
hundred additional pages of attachments. The Court discerns from Plaintiff’s pleadings and
attachments that Plaintiff’s lawsuit derives largely from his dissatisfaction with his legal
representation (or lack thereof) during a prior state criminal proceeding (Dkt. #25 at 2 (alleging
the Defendants “depriv[ed] Plaintiff of his U.S. and Texas Constitutional and Federal and State

Statutory rights to be represented, (assisted by state ‘approved’ legal counsel), by zealous legal
counsel, during a criminal trial”)). Plaintiff’s prior criminal proceeding relates to an eviction from
a home in Murphy, Texas, that Plaintiff and his family inhabited for a brief time (see Dkt. #25 at
6-21). Plaintiff and/or his family members inhabited the home pursuant to an agreement with
staging company Castle Keepers, Inc. (“Castle Keepers”). Castle Keepers, acting on behalf of
homeowner Aji Philip, had placed Plaintiff’s family in the home to make it appear more “lived in”
while it was for sale. In May 2012, however, Philip asked that Plaintiff and his family be removed
from the home. Castle Keepers filed a forcible detainer action against Plaintiff’s family members
that same month. Castle Keepers prevailed and, on July 9, 2012, the Court issued a writ of
possession to the constable’s office. See Castle Keepers, Inc. v. Drew Burgess, et al., Collin
County Cause No. 32-EV-12-00312; see also Dkt. #25 at 8-9. Thereafter, and on July 13, 2012,
the Murphy Police Department was dispatched to the home. Plaintiff alleges that, on this date,
while Plaintiff was attempting to move a glass display into a moving truck, Plaintiff somehow
shattered the display; Sergeant James Hermes had Plaintiff arrested as a result for illegal dumping
(Dkt. #25, Exhibit 1-M at 87). See also Burgess v. State, No. 05-14-00216-cr, 2015 WL 4628728,
at *2 (Tex. App.—Dallas Aug. 4, 2015, pet. denied). From this arrest arose the criminal case that
forms the basis of Plaintiff’s present suit (see, e.g., Dkt. #31 at 4-5, 8; Dkt. #25 at 7-30). Plaintiff
asserts both the (civil) forcible detainer proceeding and his criminal proceeding were rife with
procedural irregularities and mistreatment of both himself and his family. Plaintiff believes the
mistreatment he experienced during his criminal proceeding reflects a vast conspiracy between the
American Bar Association, the Department of Education, and all licensed attorneys that deprived
Plaintiff of his constitutional right to effective assistance of counsel (see Dkt. #25 at 2-3, 25-51).

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In light of these allegations, Plaintiff requests “equitable and other relief” based on his
“specified property interest in the original contract, ‘The Constitution of the United States of
America’” (Dkt. #25 at 1). Plaintiff asserts the following causes of action as a basis for this relief:
(1) “Misappropriation of Chattel Property (Common law crime)”; (2) “Acquisition and
Maintenance of an Interest in and Control of an Enterprise Engaged in a Pattern of Racketeering
Activity: 18 U.S.C. §§ 1961(5), 1962(b)”; (3) “Conduct and Participation in a RICO Enterprise
through a Pattern of Racketeering Activity: 18 U.S.C. §§ 1961(5), 1962(c)”; (4) “Conspiracy to
Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1961(5), 1962(d)”; (5) “Fifth
Amendment Violation (Bivens v. VI Unknown Agents of Federal Bureau of Narcotics)”; and
(6) “First Amendment Violation (Bivens v. VI Unknown Agents of Federal Bureau of Narcotics)”
(Dkt. #25 at 56-64).
Plaintiff has previously asserted many of these claims before the Court. See Eastern
District of Texas Case No. 4:14-cv-466 (hereinafter the “Original Federal Suit”). Indeed, as the
Magistrate Judge made clear, the bulk of Plaintiff’s claims in the instant suit grow out of the same
circumstances underlying the Original Federal Suit; it appears “Plaintiff merely names new
Defendants in this lawsuit and further engrafts charges of a vast conspiracy to explain the outcome
of those events” (Dkt. #30 at 8).

As such, the Magistrate Judge entered a report and

recommendation on April 21, 2017, recommending that each and every one of Plaintiff’s claims
against each and every one of Defendants be dismissed with prejudice under 28 U.S.C. § 1915(e)
(Dkt. #30). Plaintiff timely filed objections on May 8, 2017 (Dkt. #31), which the Court now
considers.

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OBJECTIONS
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations to which
the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). Plaintiff’s
objections are largely duplicative and repetitive of each other; after reviewing Plaintiff’s filing, the
Court discerns Plaintiff objects as follows to the Magistrate Judge’s report and recommendation:
(1) the Magistrate Judge improperly found that Plaintiff’s claims relate to his eviction from
Philip’s home rather than to his state criminal proceedings; and (2) the Magistrate Judge
erroneously recommended dismissal with prejudice of Plaintiff’s claims for frivolousness.
Objection:

Characterization of Plaintiff’s Claims

Plaintiff seemingly objects that the Magistrate Judge improperly found Plaintiff’s claims
arise out of his eviction from Philip’s home rather than out of his related criminal proceedings for
illegal dumping. Plaintiff claims he was not “evicted” and that the instant lawsuit does not raise
the same claims and/or focus on the same factual scenario as did the Original Federal Suit.1 To
that end, Plaintiff argues the Magistrate Judge characterizes his claims in a dishonest manner.
However, the Court notes Plaintiff devotes fifteen pages of his Second Amended Complaint solely
to discussing the forcible detainer proceeding (see Dkt. #25 at 6-21) and indicates that the alleged
wrongs he purportedly suffered during that proceeding led in part to his RICO conspiracy
allegations (Dkt. #25 at 21). Further, in identifying his causes of action, Plaintiff expressly
“repeat[s] and re-allege[s] each and every allegation of the foregoing paragraphs[,]” including

Plaintiff may also assert he added the defendants to this suit who were also named in the prior suit “with the
permission of the court” (see Dkt. #31). The record reveals no request by Plaintiff to add any defendants to this suit,
much less those named in the Original Federal Suit. Notably, whether or not Plaintiff properly added any Defendants
named in the Original Federal Suit here does not affect the Magistrate Judge’s conclusion that the instant lawsuit
should be dismissed as duplicative of the Original Federal Suit.
1

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those related to the forcible detainer proceeding (Dkt. #25 at 56-57, 60-63). The Magistrate Judge
clearly relied upon Plaintiff’s own allegations and representations in finding Plaintiff’s claims arise
not only from his criminal proceeding, but also from the civil forcible detainer proceeding that
preceded it and which were the subject of the Original Federal Suit (see Dkt. #30 at 2-9).
The Fifth Circuit has found claims “involv[ing] the same general series of events, facts,
and conditions that were at issue in an earlier . . . proceeding[]” constitute “‘[r]epetitious litigation
of virtually identical causes of action’ . . . properly dismissed as frivolous.” McBarron v. Fed.
Bureau of Prisons, 332 F. App’x 961, 963-64 (5th Cir. 2009) (per curiam). The Fifth Circuit also
has upheld dismissal of claims as frivolous for duplicating claims “grow[ing] out of the same
allegations” raised in a previous lawsuit, even where a plaintiff attempts to “raise new claims” or
to add new defendants. Potts v. Texas, 354 F. App’x 70, 71 (5th Cir. 2009) (per curiam); see also
Potts v. Texas, No. 1:07-CV-632, 2008 WL 4525007, at *3 (E.D. Tex. Sept. 26, 2008) (“While
there may be some new defendants and claims buried within the original and two amended
complaints filed in this district, the new factual allegations are the same ‘clearly baseless,’
‘fanciful,’ ‘fantastic,’ ‘delusional,’ and ‘irrational or the wholly incredible’ types of claims that
were dismissed as frivolous in the southern district of Texas. They require the same action here.”).
In the instant case, Plaintiff’s first, fifth, and sixth causes of action (for misappropriation
of chattels and for Fifth and First Amendment violations under Bivens, respectively), which
Plaintiff raises against all named Defendants, duplicate Plaintiff’s previous claims in the Original
Federal Suit. Plaintiff’s claims that Defendants misappropriated his property and/or violated his
civil rights rehash his claims under Section 1983 from the Original Federal Suit, as they each arise
out of allegations that his personal property and home, as well as his liberty, were taken
inappropriately (see Dkt. #26 in Original Federal Suit). The Court fully considered those claims

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in the Original Federal Suit, and Plaintiff’s repetition of them here does not occasion their
reconsideration. See McBarron, 332 F. App’x at 963-64 (finding “claims involv[ing] the same
general series of events, facts, and conditions that were at issue in an earlier . . . proceeding”
properly dismissed because the petitioner “had an adequate opportunity for ‘one bite at the
litigation apple.’”). Moreover, upon review, each and every claim Plaintiff raises in the instant
lawsuit grows out of the same factual scenario raised in the Original Federal Suit, namely the
forcible detainer proceeding against Plaintiff and/or his family and the closely related criminal
proceeding against Plaintiff (see Dkt. #36 in Original Federal Suit). Although Plaintiff now further
alleges a vast conspiracy between the ABA, Department of Education, and every licensed attorney
in the nation, Plaintiff’s addition of new defendants and claims he neglected to raise previously
does not salvage his otherwise wholly duplicative claims. See, e.g., Potts, 354 F. App’x at 71;
Potts, 2008 WL 4525007, at *3. Accordingly, the Magistrate Judge properly found Plaintiff’s
claims duplicative of his previous claims and thus subject to dismissal. The Court overrules
Plaintiff’s objection.
Objection:

Dismissal with Prejudice for Frivolousness

Plaintiff also objects to the Magistrate Judge’s recommendation that his claims be
dismissed with prejudice under 28 U.S.C. § 1915(e) for frivolousness. Plaintiff argues he asserts
valid claims of misappropriation and under Bivens for more than just the chattel property taken
from the home; he asserts “chattel” as used in the Second Amended Complaint “refers to the chattel
of the constitutional rights referred to in my complaint . . . , I have a right to the guarantees of the
constitution, and I simply make claim to that right and any denial is effectively stealing my
property rights” (Dkt. #31 at 7). He also claims “a liberty interest in the constitution and
maintaining its veracity from those that would seek to deny [his] constitutional rights” (Dkt. #31

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at 7). Plaintiff contends, as well, that no statute of limitations bars his claims because he “just
became aware of [the infractions] right before [he] filed the complaint” (Dkt. #31 at 9). As to his
RICO claims, Plaintiff objects that the Magistrate Judge selectively quotes portions of his Second
Amended Complaint in an effort to make his otherwise valid claim seem outlandish; he states his
theory as follows:
I have been clear in the 167 pages about the attorneys and judges and other
professionals from the DoEd, to ABA, to TBA to the government atones [sic] and
police officers all working together as ABA associates and those that are under the
control of the ABA that are intentionally, or not, working together [to] form a tacit
understanding in agreement, as police arrest persons knowing that the City and
County attorneys are going to cover for them and support the things that [sic] are
doing, and that the ABA and its associates thru [sic] the Bar System are working to
alter the original intent of the law with all the amendments and judicial decisions
that in effect, deny the people’s rights guaranteed to us by the constitution in times
most needed, when in the judiciary (Legal) system, . . . .
(Dkt. #31 at 11). Plaintiff ties the alleged conspiracy to his criminal proceeding by asserting he
has a “constitutionally guaranteed right to be represented by qualified counsel . . . in particular as
an indigent defense defendant” that was allegedly abrogated by “the laws and actions of the ABA
and its significant associates to deny such guarantees through its attempts at changing the Rules
over the last 150 years or so” (Dkt. #31 at 5).
Courts appropriately dismiss claims with prejudice under Section 1915(e)(2)(B) in certain
circumstances. See Shabazz v. Franklin, 380 F. Supp. 2d 793, 802 (N.D. Tex. 2005) (citing Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992), and Marts v. Hines, 117 F.3d 1504, 1505 (5th Cir. 1997)
(en banc)). The Fifth Circuit has specifically held that, when presented with one of the following
situations, a court may dismiss an in forma pauperis complaint with prejudice: “(1) ‘complaints
containing claims which, on their face, were subject to an obvious meritorious defense’; (2) when
the plaintiff had been ‘given an opportunity to expound on the factual allegations’ through a
questionnaire or hearing and still ‘could not assert a claim with an arguable factual basis’; and

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(3) ‘claims without an arguable basis in law.’” Shabazz, 380 F. Supp. 2d at 802-03 (noting this
includes “‘dismissals as frivolous or malicious’ under the IFP screening statute[,]”citing Marts,
117 F.3d at 1505, and United States v. Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998)). A claim
lacks “an arguable basis in law if it is grounded upon an untenable, discredited, or indisputably
meritless legal theory including alleged violations of a legal interest that clearly does not exist.”
Phillips v. City of Dallas, No. 3:14-cv-3131-M, 2015 WL 233336, at *4 (N.D. Tex. Jan. 14, 2015)
(citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989), and Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999)). “Claims within a complaint lack an arguable basis in fact if they describe
‘fantastic or delusional scenarios’” such that they “rise to the level of the wholly incredible,
whether or not there are judicially noticeable facts available to contradict them.” Id. (quoting
Neitzke, 490 U.S. at 327-28, and Denton, 504 U.S. at 32-33).
To begin, regarding Plaintiff’s claims for misappropriation and/or under Bivens, Plaintiff
fails to identify a cognizable property or liberty interest (other than his interest in the personal
property allegedly seized when Plaintiff’s family was ordered to vacate the home discussed supra)
against which to make such claim. In his objections, Plaintiff characterizes his constitutional rights
as “chattel” that Defendants have either misappropriated or subjected to a taking (under the Fifth
Amendment). Plaintiff cites no authority supporting this understanding of a person’s constitutional
rights, and the Court has found no authority for this particular proposition. Likewise, Plaintiff
cites no authority for his claimed liberty right in defending the veracity of the Constitution.
Plaintiff has attempted through his objections to allege “violations of a legal interest that clearly
does

not

exist”;

accordingly,

such

claims

2015 WL 233336, at *4.

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should

be

dismissed.

See

Phillips,

Further, to the extent Plaintiff rests his allegations on the taking of his personal property,
the Magistrate Judge properly found Plaintiff’s claim barred by the applicable statutes of
limitation. Bivens and trespass to chattel (and/or conversion) claims lapse at the expiration of two
years after the alleged wrongdoing. See, e.g., Reed v. Gonzalez, No. CIV.A. 499CV603P, 2001
WL 640788, at *3 (N.D. Tex. June 8, 2001) (regarding Bivens claims); Fields v. City of Texas City,
864 S.W.2d 66, 69 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (citing Tex. Civ. Prac. &
Rem. Code § 16.003(a) regarding trespass to chattel, conversion, and/or misappropriation claims)).
Plaintiff’s assertion that he just became aware of such claims rings hollow in light of his own
filings: complaints (dated June 5, 2012) that he purportedly filed with the court in the civil forcible
detainer proceeding (see Dkt. #25, Exhibit 1-L), as well as an email (dated August 6, 2012) that
he apparently wrote regarding the alleged wrongdoing on the date he was arrested (Dkt. #25,
Exhibit 1-M at 86-88) show Plaintiff knew (or at least believed) as early as 2012 that he had been
wronged as alleged in the present case. Furthermore, the “discovery rule” as applied to claims for
“conversion” and other such torts operates to toll the two-year limitations period only “until the
plaintiff knew, or exercising reasonable diligence, should have known of the wrongful act causing
injury.” Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518, 523-24 (5th Cir. 2001)
(applying Texas law). Likewise, courts toll Bivens claims “sparingly” and generally only where
the “plaintiff diligently pursued his rights[] . . . .” Pequeno-Garcia v. Zarate, No. 3:17-cv-867-LBN, 2017 WL 2470996, at *2 (N.D. Tex. May 4, 2017). Plaintiff states in a conclusory fashion in
his objections that he did not know about his claims until just before filing suit, but his allegations
and attachments belie this statement. Accordingly, the Court agrees with the Magistrate Judge that
the applicable statutes of limitation bar Plaintiff’s Bivens and misappropriation claims.

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As to Plaintiff’s RICO claims (his second, third, and fourth causes of action), the Court
finds Plaintiff’s allegations factually and legally frivolous. The Magistrate Judge summarized
Plaintiff’s conspiracy allegations as follows:
Plaintiff alleges a vast conspiracy headed by the Department of Education and the
ABA that is tended to by every lawyer admitted to practice law in the United States
and is aimed at depriving every non-lawyer citizen of the United States of his or
her constitutional rights [see, e.g., Dkt. 25 at 47-48]. . . . Plaintiff claims this
nationwide machinery operates to deprive every non-lawyer of his or her
constitutional rights and operated in his particular case to evict him from the
Property, to destroy and/or seize his personal property, and to restrict his freedom
of speech.
(Dkt. #30 at 22-23). Plaintiff objects to this characterization, but his own explanation (quoted
supra at p.7) does not provide any additional clarity to the Second Amended Complaint’s jumbled
claims. The Court agrees with the Magistrate Judge that Plaintiff “fails to allege any specific
actions on the part of any Defendant which would support liability under . . . RICO” and that “the
sheer breadth of Plaintiff’s RICO claims and the conspiracy alleged” leaves the Court “struggl[ing]
to conclude that a reasonable person viewing the allegations would find them rational or based in
reality[,]” as is required for an in forma pauperis complaint to survive dismissal. See, e.g.,
Hamilton v. United Parcel Serv., Inc., No. 1:11-CV-240, 2012 WL 760714, at *5 (E.D. Tex. Feb.
13, 2012) (dismissing plaintiff’s claims of a “far-fetched scheme whereby UPS and CVS, both
large and well-known corporations, conspired with the federal government”); Phillips, 2015 WL
233336, at *4-5 (finding dismissal for frivolousness appropriate where the plaintiff made wideranging claims of conspiracy involving the FBI and UPS, Inc., among others); Burley v. Unknown
Defendants, No. 2:15-CV-143, 2015 WL 8488652, at *3 (S.D. Tex. June 19, 2015), report and
recommendation adopted, No. 2:15-CV-143, 2015 WL 8212681 (S.D. Tex. Dec. 7, 2015) (finding
dismissal for frivolousness appropriate and noting that, “[a]lthough these matters are real to

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Plaintiff, the allegations are so fanciful that a reasonable person would find them irrational and
completely lacking any factual basis”). The Court overrules Plaintiff’s objection.
CONCLUSION
Having considered Plaintiff’s timely filed objections (Dkt. #31), and having conducted a
de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate
Judge are correct and adopts the Magistrate Judge’s report (Dkt. #30) as the findings and
conclusions of the Court.
Accordingly, it is ORDERED that Plaintiff’s Second Amended Complaint (Dkt. #25) is
DISMISSED, and each and every of Plaintiff’s claims against each and every Defendant are
.

DISMISSED with prejudice.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.
SIGNED this 19th day of June, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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