Amrhein v. United States of America, et al

Filing 20

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 12 Report and Recommendations. Having considered each of Plaintiff's objections (Dkt. #17) and having conducted a de novo review, the Court is of the opini on that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #12) as the findings and conclusions of the Court. Accordingly, it is ORDERED that Plaintiff's First Amended Petition / Pleadings from Original Petition with Stated Claims, Elements, Case Law & Specific Details as the Court Ordered & Pleads for Relief (Dkt. #11) be DISMISSED, and that each and every of Plaintiff's claims be 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 9/6/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DARLENE C. AMRHEIN

§
§
§
§

v.

Civil Action No. 4:16-CV-223
(Judge Mazzant/Judge Nowak)

UNITED STATES OF AMERICA, ET AL.
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 June 23, 2017, the report of the Magistrate Judge (Dkt. #12) was entered containing proposed
findings of fact and recommendations that Plaintiff Darlene C. Amrhein’s First Amended Petition/
Pleadings from Original Petition with Stated Claims, Elements, Case Law & Specific Details as
the Court Ordered & Pleads for Relief (“Amended Complaint”) (Dkt. #11) be dismissed. Having
received the report of the Magistrate Judge (Dkt. #12), having considered each of Plaintiff’s
objections (Dkt. #17), 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 the Court hereby adopts the
Magistrate Judge’s report (Dkt. #12) as the findings and conclusions of the Court.
BACKGROUND
The underlying facts are set out in further detail by the Magistrate Judge and need not be
repeated here in their entirety (see Dkt. #12). Accordingly, the Court sets forth herein only those
facts pertinent to Plaintiff’s objections.
Plaintiff filed this lawsuit on March 31, 2016, and contemporaneously filed a Motion for
Leave to Proceed In Forma Pauperis (Dkt. #4). The Court provisionally granted the Motion and
ordered Plaintiff to file an amended complaint setting forth “(1) [t]he basis for this Court’s

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jurisdiction over this litigation; (2) [e]ach claim/cause of action Plaintiff alleges or intends to
allege[,] . . . specifically identify[ing] which claims/causes of action are asserted against which
Defendants in this litigation; [and] (3) [t]he specific factual allegations regarding each Defendant
for each claim asserted” (Dkt. #6). Plaintiff thereafter filed the Amended Complaint (the live
pleading in this matter) on November 15, 2016 (Dkt. #11), naming over 160 defendants, including
Plaintiff’s previous employer, certain insurance providers, various attorneys, judges, and judicial
staff, and numerous governmental entities and agents.
Plaintiff’s claims stem from disputes between Plaintiff and her prior employer, La
Madeleine, Inc. Plaintiff alleges La Madeleine and its employees mistreated her at work, caused
her to suffer on-the-job injuries, and subsequently refused to pay for certain medical procedures
Plaintiff attempted to claim under her employee insurance plan, among other things (see, e.g.,
Dkt. #11 at 1, 6-7, 11-13, 20, 29 (asserting claims against La Madeleine, Inc., other employees
who worked with Plaintiff, and other entities allegedly associated with La Madeleine, Inc.)).
Plaintiff raises claims related to the purported denial of insurance against certain insurance
companies and their agents, as well as against certain physicians. Plaintiff asserts each of these
persons and entities worked to deprive her of insurance benefits guaranteed through her employer
(see, e.g., Dkt. #11 at 1-3, 6-7, 11-13). Additionally, Plaintiff makes various allegations against
lawyers, judges, and court staff associated with the 1996 state court litigation she initiated on these
same claims and prosecuted unsuccessfully (through numerous appeals) for years (see Dkt. #11,
Exhibits 18-24, 26-34,37-38). See also, e.g., Amrhein v. La Madeleine, Inc. (Amrhein State), No.
06-12-00107-CV, 2013 WL 839227, at *1 (Tex. App.—Texarkana, Mar. 6, 2013, pet. denied) (the
state court case and appeals thereon are hereinafter and collectively referred to as the “Amrhein
State litigation”).

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In the Amrhein State litigation, Plaintiff “initially sued La Madeleine, Inc., for failing to
provide a safe workplace, alleging primarily that she developed carpal tunnel syndrome from the
repetitive motion of tossing or mixing salads over a period of less than five months.” Amrhein
State, 2013 WL 839227, at *1. After Plaintiff lost in the trial court (and following numerous
appeals and remands), Plaintiff raised a vast number of issues on appeal related to what Plaintiff
perceived as improper court procedure and treatment of her claims in the trial court (see Dkt. #12
at 3 (citing Amrhein State, 2013 WL 839227, at *1-2)). The state appeals court affirmed the trial
court’s dismissal of Plaintiff’s claims, specifically noting Plaintiff’s “incomprehensible” briefing
could “accurately be described as a fifty-page denunciation of perceived slights by the legal system
and [Plaintiff’s] belief that because she has not prevailed, the system has treated her unfairly at
every turn.” Amrhein State, 2013 WL 839227, at *2. The Texas Supreme Court denied review on
February 7, 2014. Prior to the Texas Supreme Court’s denial through April 22, 2014, when the
lower appeals court denied Plaintiff’s final motion, Plaintiff repeatedly filed for reconsideration
before both the lower appeals court and the Texas Supreme Court. See Case record in Texas Court
of Appeals Case No. 06-12-00107-CV.
On August 16, 2011, while the Amrhein State litigation was ongoing, Plaintiff filed suit in
the United States District Court for the Eastern District of Texas; the Court transferred Plaintiff’s
case to the Northern District of Texas on August 26, 2011. See Amrhein v. La Madeleine, Inc.
(Amrhein NDTX I), No. 3:11-CV-02440-P, 2012 WL 12840376, (N.D. Tex. Dec. 21, 2012), aff’d,
589 F. App’x 258 (5th Cir. 2015) (per curiam) (the proceedings before the Northern District of
Texas and subsequent appeal to the Fifth Circuit are hereinafter referred to as the “Amrhein NDTX
I litigation”). In the Amrhein NDTX I litigation, Plaintiff’s “employment dispute” at the center of
her claims in the Amrhein State litigation “grew into allegations against all branches of government

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for the State of Texas[,]” including various judges, their staff, legislators, and executive branch
members. Id. at *1. Plaintiff also named various attorneys allegedly involved in the Amrhein State
litigation as defendants in the Amrhein NDTX I litigation. Id. The Northern District dismissed
Plaintiff’s claims with prejudice, finding Plaintiff had failed to state a claim upon which relief
could be granted. See id. at *3-4.
In the instant action, Plaintiff now raises for the third time all of the same claims she raised
in the Amrhein NDTX I litigation, and has appended claims against every member of the judiciary
remotely associated with the Amrhein NDTX I litigation, as well as their staff and any attorney
representing other parties to that litigation (see, e.g., Dkt. #11 at 1-4, 8-10). Further, Plaintiff
attempts to raise claims against various members of Congress, the federal executive branch, and
every justice of the United States Supreme Court (see, e.g., Dkt. #11 at 9-10). Specifically,
Plaintiff raises the same claims of conspiracies, frauds, and biased judges who worked with
attorneys representing other parties (as well as many entities and members of the federal and Texas
state governments) to deny her fair proceedings and to cause her damages as a result. These claims,
which Texas state courts and the Northern District of Texas court have in large part already
considered and dismissed, are now before the Court for screening pursuant to 28 U.S.C. § 1915(e)
(“Section 1915”). For ease of reference, the Court adopts the Magistrate Judge’s grouping of
Defendants (more fully identified in the margin) into three primary sets, namely: (1) the Northern

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District of Texas Defendants;1 (2) the Related Defendants;2 and (3) the Federal Lawsuit
Defendants.3 (To the extent the Court has inadvertently omitted any named defendant in the lists

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In the Amrhein NDTX I litigation, Plaintiff named the following entities and persons, alleging each was directly or
indirectly involved in the employment-related matters or engaged in some misconduct or bias in adjudicating or
litigating the underlying state actions: La Madeleine, Inc., State Bar of Texas; Governor Rick Perry, Texas Attorney
General (then Gregg Abbott), Texas Secretary of State (then Hope Andrade), the Texas State Legislature, Dallas
County, John F. Warren (County Clerk and Records), Dallas Texas Courts & Judges (specifically, County Court at
Law No. 3, Judge Sally Montgomery, County Court at Law No. 1, Judge D’Metria Benson, and Judge Ted Akin, as
well as “All Court[s] & Judges” in the George L. Allen Building), the Regional Administrative Court, Judge John
Ovard, the County Court at Law Fifth District of Texas, the Supreme Court of Texas, Attorney Jerry Fazio, Owen &
Fazio Law Firm, Attorney Brent Cornwell, Attorney Robert Clarkson, Judge Jack Pierce, Judge Russell Roden, Judge
Robert Jenevein, Union Security Insurance Company, Michelle Falen, the Texas Department of Insurance, and the
Texas Insurance Commissioner. These defendants are hereinafter and collectively referred to as “the Northern District
of Texas Defendants.” Plaintiff already pursued claims against each of these defendants in the Amrhein NDTX I
litigation, wherein all defendants were dismissed.
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Plaintiff names the following entities and persons in the Amended Complaint, alleging each was directly or indirectly
involved in the employment-related matters or engaged in some misconduct or bias in adjudicating or litigating the
underlying state actions: La Madeleine of Texas, Inc., La Madeleine, de Corps, Inc., Groupe Le Duffe, Inc., Patrick
Leon Esquerre (Founder, Owner, Advisor & Seller), Mr. John Corcoran (President/CEO), John Cahill (President),
Duncan Davis (Vice President), Wallace B. Doolin (CEO), Fortis Benefits Insurance Company & Agents, Assurant
Employee Benefits, Occupational Health (La Madeleine Company Healthcare Provider), Dr. John Touhey (Company
Physician & Reporting Agent), Gwynn Carver, M.D. (Company Physician & Drug Testing), Mark S. Hutzel (La
Madeleine Operations & Direct Manager), Karen Gentry (La Madeleine Employee & Supervisor), Sharon Crane (La
Madeleine Employee & Long Term Disability Insurance), Steve Roos (La Madeleine Employee Corporate Office),
“Other La Madeleine Employees Witnesses – Becky, Monique, Judith, Carlos, et al.,” Essilor Vision Foundation,
Esquerre Enterprises, Le Madeleine (Florida) Inc., La Madeleine Boca Raton, The Wine Gourmet, Inc., Holder
Services, Inc., LMI Investment #1 Company LTD, Esquerre Property Company LTD, Attorney John Owen, Attorney
Tracy Stoker, Dodge, Fazio, Anderson & Jones, Attorney Jason Kipness, Kipness Law Firm, Attorney S. Russell
Headrick, Lathrop & Gage, LLP, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Attorney Erika M. Kane,
Attorney Peter Harlan, Attorney Michael James Patterson, Attorney Cynthia Canfield Hamilton, Attorney Susan
Farris, Law Offices of Gallerson & Yates, Vincent, Sarafino, Geary, Waddell & Jenevein, Attorney David R. Gibson,
The Gibson Group, Judge Mark Greenberg, Attorney Michael R. Snipes (Retired Judge), Broden, Mickelsen, Helms,
& Snipes LLP, Judge Bill F. Coker, Judge Tom Fuller, Judge Mary Murphy, Bailiff Gary Christensen, Dallas Sheriff’s
Department Lt. Dohmann, Dallas County Sheriff Department Lupe Valdez, Dallas County Internal Affairs/Bailiffs,
Lt. B. Terrell Internal Affairs Dallas Sheriff’s Department, Cheryl Duncan (Transcription Reporter), Cayse Coskey
(Court Reporter), Richard Rhode (Court Reporter), Fawn Cave (Court Reporter), Denise Jay (Court Reporter),
Veronica Hood, Aneesah Anderson, Court Chief Deputy Claudia McCoy, Court Clerk Lisa Matz, Fifth District Court
of Appeals at Dallas, Justice Joseph Morris, Justice Mark Whittington, Justice Michael O’Neill, Justice Carolyn
Wright, Justice Elizabeth Lang-Miers, Justice Martin Richter, Justice Douglas Lang, Justice Linda Thomas, Justice
David Bridges, Justice Kerry P. Fitzgerald, Sixth District Court of Appeals at Texarkana, Justice Josh R. Morriss III,
Justice Jack Carter, and Justice Bailey Moseley. These defendants are hereinafter and collectively referred to as “the
Related Defendants.” Plaintiff raises claims against each of these defendants related to the same underlying facts as
were raised in Amrhein NDTX I and, as best the Court can tell, does so for the first time in the present case.
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Plaintiff also names the following entities and persons in the Amended Complaint, alleging that each was either
directly or indirectly involved in and acting unlawfully with regard to the Amrhein NDTX I litigation: United States
District Court for the Eastern District of Texas (“Judge Don Bush Venue Transfer 2011”), United States Northern
District Court, Judge Jorge Solis, Magistrate Judge Renee Toliver, Judge A. Joe Fish, Clerk of Court Karen Mitchell
(Northern District), Chief Judge Carl E. Stewart, Shelly Saltzman (Fifth Circuit), United States Court of Appeals Fifth
Circuit, Judge Thomas Reavely, Judge Leslie H. Southwick, Judge James L. Dennis, Clerk of Court Lyle W. Cayce,
United States Supreme Court & Justices; Justice Sonia Maria Sotomayor; Justice Stephen Gerald Breyer; Justice
Samuel Anthony Alito, Jr.; Justice Elena Kagan; Justice Clarence Thomas; Justice Antonin Gregory Scalia
(Deceased); Justice Anthony McLeod Kennedy; Justice Ruth Joan Bader Ginsburg; Chief Justice John G. Roberts;

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included herein, the Court clarifies that this Memorandum Adopting Report and Recommendation
of United States Magistrate Judge addresses all named defendants and all claims raised by Plaintiff
in her Amended Complaint.)
The Magistrate Judge also noted and the Court reiterates here Plaintiff’s prior litigation
history: she has filed more than six suits before numerous Texas state and federal courts (including
this one), and courts have dismissed each of these cases for frivolousness and/or for failure to
comply with basic pleading or procedural requirements. See, e.g., Amrhein State, 2013 WL
839227; Amrhein NDTX I, 2012 WL 12840376; Balistreri v. Remax Realty, No. 05-10-00611-CV,
2011 WL 149984, at *1 (Tex. App.—Dallas Jan. 19, 2011) (pet. denied); Balistreri-Amrhein v.
AHI, No. 05-09-01377-CV, 2012 WL 3100775, at *1 (Tex. App.—Dallas July 6, 2011) (pet
denied); Amrhein-Macon v. Wood, No. 2-05-158-CV, 2005 WL 1654762, at *1 (Tex. App.—Fort
Worth July 14, 2005) (pet. denied); Amrhein v. Riechert, No. 3:12-CV-03707-G-BK, 2013 WL
1155473, at *13-14 (N.D. Tex. Feb. 1, 2013), report and recommendation adopted, No. 3:12-CV3707-G BK, 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013) (Amrhein NDTX II); Balistreri-Amrhein
v. Verrilli, No. 4:16-CV-112, 2017 WL 726919, at *1 (E.D. Tex. Feb. 24, 2017). After reviewing
these prior cases, the Court concurs with the Magistrate Judge’s observation that, in each of these

Clerk Advisor Jacob C. Travers; Supreme Court Clerks Scott S. Harris and James Atkinson, United States of America;
President Barack Hussein Obama, Vice President Joseph Biden, United States Solicitor General Donald B. Verilli, Jr.,
United States Attorney General Loretta Elizabeth Lynch, United States Department of Justice, U.S. Attorney’s Office
for the Northern District of Texas; John R. Parker (Northern District); Malcolm Bales (U.S. Attorney’s Office);
Federal Bureau of Investigation; FBI Director James B. Comey; United States Senate Judiciary Committee; Judiciary
Senate Chairman Charles E. “Chuck” Grassley, United States House Judiciary Committee; Judiciary House Chairman
Robert Bob Goodlatte; Ted Cruz (U.S. Senator and Senate Judicial Chairman), John Cornyn (U.S. Senator and Senate
Judicial Committee); United States Senate (114th Congress), United States House (114th Congress); Administrative
Office of United States Courts, Office of General Counsel, United States Attorneys Office (Malcolm Bales), Texas
Office of Court Administration, Dan Patrick (Texas Lt. Governor), Texas Ethics Commission, Texas Workers
Compensation Division, Robert Shipe & Richard F. Reynolds, Texas Senate; Texas Senate Members, City of Dallas,
Mayor of Dallas Mike Rawlings, Dallas County Judge Clay Jenkins, Dallas City Hall, Dallas County District
Attorney’s Office (Susan Hawk), and Dallas City Council & Members. These defendants are hereinafter and
collectively referred to as “the Federal Lawsuit Defendants.” Plaintiff attempts to raise claims against each of these
defendants that are in some manner related to the Amrhein NDTX I litigation.

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cases, Plaintiff “has filed flurries of largely incomprehensible motions, letters, and other requests
for relief both prior to and following the respective court’s disposition of her claims” and that
courts have previously admonished Plaintiff for such behavior (Dkt. #12 at 6). Indeed, as a result
of Plaintiff’s contumacious filing conduct in a case before the Northern District, the Northern
District Court found entry of a broad pre-filing injunction appropriate:
Darlene Amrhein is prohibited from filing any new civil action in any United
States district court unless she first files a motion requesting leave of court to do
so and attaches thereto copies of (1) her proposed complaint, (2) the magistrate
judge’s findings, conclusions and recommendation in this case, (3) this court’s
order accepting the findings, conclusions and recommendation of the United States
Magistrate Judge, and (4) the judgment in this case.
Amrhein NDTX II, 2013 WL 1155473, at *13-14; report and recommendation adopted, No. 3:12CV-3707-G BK, 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013) (hereinafter the “Pre-Filing
Injunction”).

This Court has also recently examined Plaintiff’s prolific filing history and

Plaintiff’s continued failure to comply with the Northern District of Texas Pre-Filing Injunction.
See Balistreri-Amrhein, No. 4:16-cv-112, 2017 WL 726919, at *5-6 (E.D. Tex. Feb. 24, 2017)
(hereinafter “Amrhein EDTX I”).
Following review of Plaintiff’s litigation history and screening the instant claims under
Section 1915, the Magistrate Judge entered a report and recommendation on June 23, 2017
(Dkt. #12), recommending Plaintiff’s claims be dismissed with prejudice. On July 21, 2017,
Plaintiff filed Plaintiff’s 108 Objections & Points of Error for “Good Cause” Reasons to Deny
June 23, 2017 Report & Recommendations to Dismiss this Lawsuit (Dkt. #17).
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). As a

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threshold matter, the Court notes Plaintiff’s objections (more than twenty pages in excess of the
Court’s eight-page limit) seemingly take issue with the entirety of the Magistrate Judge’s findings
and recommendations. Moreover, a number of Plaintiff’s objections are duplicative of one another
and repetitive of the allegations in the Amended Complaint. After reviewing Plaintiff’s filing
under the relaxed pleading standard afforded pro se litigants, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), the Court discerns that Plaintiff objects specifically to the Magistrate Judge’s use
of Section 1915: (a) to screen the Amended Complaint and recommend dismissal with prejudice
of Plaintiff’s claims without ordering service of process; (b) to find that Plaintiff’s claims against
the Northern District of Texas Defendants and Related Defendants should be dismissed with
prejudice; and (c) to find that Plaintiff’s claims against the Federal Lawsuit Defendants should be
dismissed with prejudice (see, e.g., Dkt. #17 at 2, 5, 7, 30).
Plaintiff primarily objects to the Magistrate Judge’s use of Section 1915 to screen the
Amended Complaint because: (a) Plaintiff is not a prisoner; and (b) Plaintiff believes the Court
must “send summons for an indigent person for free” (Dkt. #17 at 2, 5). Plaintiff further contends
that the Magistrate Judge erred in recommending Plaintiff’s claims against each of the groups of
Defendants be dismissed with prejudice (e.g., Dkt. #17 at 5, 7-14).
A.

Application of Section 1915

District courts have authority under Section 1915 to dismiss a complaint sua sponte where
the complaint “[1] is frivolous or malicious; [2] fails to state a claim on which relief may be
granted; or [3] seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);
Kenechukwu v. Holder, No. 9:15-CV-62, 2016 WL 3961714, at *1-2 (E.D. Tex. June 10, 2016),
report and recommendation adopted, 2016 WL 3926576 (E.D. Tex. July 21, 2016). A court may

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dismiss a complaint under this standard “if it lacks an arguable basis in law or fact.” Siglar, 112
F.3d at 193; see Moore v. Mabus, 976 F.2d 268, 269-70 (5th Cir. 1992) (explaining the distinction
between factual and legal frivolousness in in forma pauperis complaints). Although courts
construe pro se filings liberally in this context, see, e.g., Flanagan v. LaGrone, No. 9:16-CV-59MHS, 2016 WL 4163557, at *1 (E.D. Tex. July 6, 2016), report and recommendation adopted,
2016 WL 4140751 (E.D. Tex. Aug. 3, 2016), dismissal is appropriate where the claims have no
chance of success, cf. Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir. 1993) (noting dismissal of
claims with “some chance” of success is inappropriate at screening stage but affirming dismissal
where pro se plaintiff’s claim “[was] based upon an indisputably meritless legal theory”).
Moreover, “[t]he statute applies equally to prisoner and non-prisoner cases.” Kenechukwu,
2016 WL 3961714, at *1-2 (citing Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (per
curiam) (applying Section 1915 to non-prisoner pro se litigant)); see, e.g., Booker, 2 F.3d at 115
(applying Section 1915 to non-prisoner, former arrestee who claimed wrongful arrest and
affirming dismissal under Section 1915); Patel v. United Airlines, 620 F. App’x 352 (5th Cir.
2015) (per curiam) (applying Section 1915 to non-prisoner pro se litigant); James v. Richardson,
344 F. App’x 982, 983 (5th Cir. 2009) (per curiam) (“Section 1915(e)(2)(B) requires dismissal of
frivolous IFP actions even if those actions are brought by non-prisoner plaintiffs.”); Walters v.
Scott, No. H–14–1637, 2014 WL 5878494, at *1 (S.D. Tex. Nov. 11, 2014) (“Section
1915(e)(2)(B) applies equally to prisoner and non-prisoner in forma pauperis cases.”); Sanchez v.
Waguespack, No. 09-6130, 2010 WL 1727836, at *2 (E.D. La. Mar. 31, 2010) (same); Hamilton
v. Landmark of Richardson, No. 3–02–CV–2681–K, 2003 WL 131722, at *1 n.1 (N.D. Tex. Jan.
8, 2003) (same); Haqq v. Tex. Dep’t of Hum. Servs., No. EP-07-CA-0156-FM, 2007 WL 1958611,
at *1 (W.D. Tex. June 29, 2007) (“Section 1915(e)(2)(B) applies to both prisoner and non-prisoner

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in forma pauperis cases.”); cf. Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997) (interpreting
Section 1915 and determining sections using either or both nouns “persons” and “prisoners”
applied to non-prisoners and prisoners, while sections using only noun “prisoner” applied only to
prisoners); 28 U.S.C. § 1915(e)(1)-(2) (using the term “person,” not “prisoner”). The Court finds
in accord with these authorities that Section 1915(e)(2)(B) applies to non-prisoners and prisoners
alike. See Amrhein EDTX I, 2017 WL 726919, at *3-4 (considering the same objection by Plaintiff
in another case before the Court).
Further, 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 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
(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)). Further, the
Fifth Circuit has interpreted the U.S. Supreme Court’s decision in Denton as follows:
The rule that the in limine dismissals of actions by the district court generally are
to be with prejudice particularly fits dismissals under the former 28 U.S.C.
§ 1915(d), now a part of 28 U.S.C. § 1915(e)(2). Dismissals under the in forma
pauperis statute are in a class of their own, acting not as dismissals on the merits
but, rather, as denials of in forma pauperis status. Typically, but not exclusively,
such dismissals may serve as res judicata for subsequent in forma pauperis filings,
but they effect no prejudice to the subsequent filing of a fee-paid complaint making
the same allegations. Exceptions included complaints containing claims which, on

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their face, were subject to an obvious meritorious defense, or instances in which the
plaintiff was given an opportunity to expound on the factual allegations by a Watson
questionnaire or a Spears hearing and could not assert a claim with an arguable
factual basis, or claims without an arguable basis in law.
On en banc reconsideration, considering the distinct features of such in forma
pauperis proceedings, we now hold that dismissals as frivolous or malicious should
be deemed to be dismissals with prejudice unless the district court specifically
dismisses without prejudice. . . .
Marts, 117 F.3d at 1505-06 (interpreting Denton) (footnotes omitted). In light of the Fifth Circuit’s
clear instruction in Marts, the Court finds the Magistrate Judge’s recommendations to dismiss with
prejudice appropriate.
Plaintiff’s objection that the Court improperly withheld service in this matter until
completion of screening under Section 1915 also lacks merit. Although Federal Rule of Civil
Procedure 4(m) prescribes service of process “within ninety days after the complaint is filed,” it
also permits a court to toll that period in certain circumstances. See Fed. R. Civ. P. 4(m). Relevant
here, a court may withhold service where the plaintiff proceeds in forma pauperis pending the
court’s screening of the complaint for frivolousness under Section 1915. See, e.g., Shabazz, 380
F. Supp. 2d at 799-800; Coleman v. Colvin, No. 3:16-cv-2608-D-BK, 2017 WL 2348812, at *1
(N.D. Tex. Apr. 13, 2017) (“Plaintiff's pro se complaint was referred to the United States
magistrate judge for judicial screening. The Court granted the motion to proceed in forma
pauperis, but did not issue process pending preliminary screening.”); cf. Osborne v. Texas, No. A13-CV-528-LY, 2013 WL 5556210, at *3 (W.D. Tex. Oct. 8, 2013) (noting courts have a “duty to
screen for frivolousness” in certain cases and finding sua sponte examination of the merits of a
plaintiff’s case prior to service proper).4

The Court addresses this same issue its previous Order (Dkt. #19) disposing of Plaintiff’s Motion to Recuse &
Mandatory Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good Cause
Reasons” & to Stay this Lawsuit (Dkt. #18).
4

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B.

Dismissal of Claims against Northern District of Texas and Related Defendants
as Frivolous

The Magistrate Judge found that: (1) “Plaintiff raises the same or substantially similar
claims against [the Northern District of Texas and Related Defendants] as Plaintiff raised in the
Amrhein NDTX I litigation;” and (2) any “new factual allegations/claims are the same clearly
baseless types of claims that were dismissed for failure to state a claim in the Northern District”
(Dkt. #12 at 13-15). Accordingly, the Magistrate Judge recommended that “each and every one
of the claims asserted by Plaintiff against the Northern District of Texas Defendants and the
Related Defendants must be dismissed . . . as frivolous and malicious for duplicating her
previously dismissed claims” (Dkt. #12 at 13-14). The Court agrees.
Cases “duplicative of a pending or previous lawsuit” are malicious. Potts v. Texas, 354
F. App’x 71 (5th Cir. 2009) (per curiam) (citing Pittman v. Moore, 980 F.2d 994, 995 (5th Cir.
1993) and Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)); see also McBarron v. Fed.
Bureau of Prisons, 332 F. App’x 961, 963-64 (5th Cir. 2009) (per curiam) (“The majority of . . .
claims involved the same general series of events, facts, and conditions that were at issue in an
earlier . . . proceeding[] and therefore constituted ‘[r]epetitious litigation of virtually identical
causes of action’ that were properly dismissed as malicious.”). This is so even where the plaintiff
“raise[s] new claims,” so long as those claims “grow out of the same allegations” as were presented
in the prior or pending suit(s). Id.; see also Potts v. Texas, No. 1:07-CV-632, 2008 WL 4525007,
at *3 (E.D. Tex. Sept. 26, 2008) (finding the addition of new defendants and claims did not merit
consideration where “the new factual allegations are the same ‘clearly baseless,’ ‘fanciful,’ . . .
types of claims that were dismissed as frivolous in [plaintiff’s previous cases]”). A court may
dismiss a case either as malicious or as frivolous for being duplicative. See Silva v. Stickney, No.
3:03-cv-2279-D, 2005 WL 2445433, at *4 (N.D. Tex. Sept. 30, 2005) (“Courts may appropriately

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dismiss an in forma pauperis action as frivolous, when the action ‘seek[s] to relitigate claims which
allege substantially the same facts arising from a common series of events which have already
been unsuccessfully litigated by the IFP plaintiff.’” (quoting Wilson v. Lynaugh, 878 F.2d 846,
850 (5th Cir. 1989))); see also Yarborough v. Sheriff, Tarrant Cty., Civil Action No. 4:11-cv-207Y, 2011 WL 4736302, at *1-2 (N.D. Tex, Oct. 5, 2011) (Claims presented that “are duplicative of
claims already asserted and dismissed in [a] previous case . . . may be dismissed as frivolous or
malicious[,]” or, “[a]lternatively, [because they] are . . . barred by the doctrine of res judicata[.]”).
Here, Plaintiff’s claims and allegations against the Northern District of Texas Defendants
and the Related Defendants duplicate the claims Plaintiff previously raised (and the Northern
District previously dismissed with prejudice) in the Amrhein NDTX I litigation. The Amrhein
NDTX I litigation revolved around Plaintiff’s earlier claims before Texas state courts against her
prior employer, La Madeleine, Inc., for alleged workplace wrongs. 2012 WL 12840376. After
Plaintiff unsuccessfully litigated against her employer for “over fourteen years” in the state courts,
her initial claims against her employer “grew into allegations against all branches of government
for the State of Texas” and members of the state judiciary. Id. Plaintiff perceived those entities
had wronged her throughout the state litigation, and attempted before the Northern District to raise
new claims against them. Id. To that end, Plaintiff submitted “200 pages of pleadings and
supplementary filings” wherein she “vent[ed] general frustration toward the legal process in state
court and then—defendant-by-defendant—list[ed] all causes of action she pursue[d] against each
entity”; the Northern District found this “litany of claims” did not meet federal pleadings standards
and accordingly dismissed Plaintiff’s claims with prejudice. Id. In the instant case, Plaintiff
operates in the same manner—submitting voluminous, rambling briefing listing various statutes

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and causes of action5—and attempts again to state the same claims on the same allegations as she
raised before the Northern District. Compare Amrhein NDTX I, Northern District of Texas Case
No. 3:11-cv-2440, Dkt. #1, with Eastern District of Texas Case No. 4:16-cv-223, Dkt. #12.
Plaintiff raises only the same “clearly baseless . . . types of claims that were dismissed as frivolous”
in the Amrhein NDTX I litigation. See Potts, 2008 WL 4525007, at *3. The Court overrules
Plaintiff’s objection.
C.

Dismissal of Claims against Federal Lawsuit Defendants as Frivolous

“A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a legal interest which clearly does not
exist.” Newsome, 301 F.3d at 231-32 (finding dismissal of pro se litigant’s APA claim appropriate
under Section 1915 because APA accorded litigant no right to sue EEOC given that EEOC had
engaged in no final agency action); see, e.g., Neitzke, 490 U.S. at 327-28 (“Examples . . . [include]
claims against which it is clear that the defendants are immune from suit, . . . .”); Billbrew v.
Johnson, 239 F. App’x 49, 50 (5th Cir. 2007) (per curiam) (affirming dismissal claim of deliberate
medical indifference under Section 1915 because “wholly conclusional”).
Likewise, claims lack an arguable basis in fact where based upon an “fantastic or delusional
scenarios.” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (Section 1915 “accords judges . . .
the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims
whose factual allegations are clearly baseless.”); Denton, 504 U.S. at 32-33 (“[A] court may
dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless,’ . . . a category
encompassing allegations that are ‘fanciful,’ . . . ‘fantastic,’ . . . and ‘delusional[.]’”). Though an

The Magistrate Judge noted and the Court observes that “Plaintiff purports to claim recovery through at least thirty
different statutes and causes of action . . . [but] asserts no facts in connection with such [authorities]. In most instances
she merely lists or includes citations to these statutes and/or causes of action in the body of the Amended Complaint”
(Dkt. #12 at 15 n.5).
5

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“initial assessment of the in forma pauperis plaintiff’s factual allegations must be weighed in favor
of the plaintiff[,]” a court should consider “judicially noticeable facts” in determining whether the
allegations have any basis in fact. Denton, 504 U.S. at 32. Indeed, a complaint merits dismissal
under Section 1915 where it “appears that no relief could be granted under any set of facts that
could be proven consistent with the allegations.” Newsome, 301 F.3d at 231 (citing Moore v.
Carwell, 168 F.3d 234, 236 (5th Cir. 1999)).
In the present case, the Magistrate Judge considered each of Plaintiff’s allegations with
regard to each of the groups of Federal Lawsuit Defendants6 and found that each should be
dismissed pursuant to Section 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be
granted (Dkt. #12 at 16-21). In so finding, the Magistrate Judge determined that immunity barred
Plaintiff’s claims against each group of the Federal Lawsuit Defendants (see Dkt. #12 at 16-18
(finding judicial immunity absolutely bars Plaintiff’s claims against the Defendant Judges and
Courts), Dkt. #12 at 19 (finding immunity accorded judicial staff when executing court orders or
matters of judicial discretion applied to bar Plaintiff’s claims against Defendant Court Staff and
Clerks), Dkt. #12 at 19-21 (finding the Defendant Attorneys and Law Firms are immune to
Plaintiff’s claims), Dkt. #12 at 21 (finding Plaintiff’s allegations against the Government
Defendants conclusory and without any basis in law)). After conducting a de novo review of the
Amended Complaint, the Court finds Plaintiff’s claims against each of the Federal Lawsuit
Defendants should be dismissed with prejudice. Plaintiff’s claims against the Defendant Judges
and Courts clearly are barred by immunity given that neither the allegations (nor the objections)
demonstrate that any of the Defendant Judges and Courts “acted in the ‘clear absence of all

6

The Magistrate Judge defines the following groups of Federal Lawsuit Defendants: (1) Defendant Judges and Courts,
(2) Defendant Court Staff and Clerks, (3) Defendant Attorneys and Law Firms, and (4) Government Defendants
(Dkt. #12 at 16).

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jurisdiction’” in any of the relevant proceedings. See, e.g., Stump v. Sparkman, 435 U.S. 349, 35557 (1978). Plaintiff’s claims against the Defendant Court Staff and Clerks are clearly barred by
immunity, as well, because neither the allegations nor the objections show that any of the
Defendant Court Staff and Clerks acted other than as they were “specifically required to do under
court order or at a judge’s discretion.” See, e.g., Clay v. Allen, 242 F.3d 679, 682 (5th Circ. 2001)
(per curiam) (citing Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981)). Likewise, each of the
Defendant Attorneys and Law Firms—none of whom represented Plaintiff in any of the relevant
proceedings—has absolute immunity to Plaintiff’s claims expounded in the Amended Complaint,
which alleges only “conduct [that] was ‘the kind of conduct in which an attorney engages when
discharging . . . duties to [a] client.’” See, e.g., Troice v. Proskauer Rose, L.L.P., 816 F.3d 341,
346-49 (5th Cir. 2016). Finally, with regard to the Government Defendants, it “appears that no
relief could be granted under any set of facts that could be proven consistent with the allegations[,]”
Newsome, 301 F.3d at 231. Plaintiff asserts only that the Government Defendants have failed to
assist, explain, remedy, or otherwise respond to complaints Plaintiff has “Reported & Disclosed”
to them (e.g., Dkt. #11 at 11).

Plaintiff’s complaints against the Government Defendants

accordingly lack an arguable basis in law. The Court finds Plaintiff’s claims against each and
every of the Federal Lawsuit Defendants should be dismissed with prejudice. Accordingly, the
Court overrules Plaintiff’s objection.
CONCLUSION
Having considered each of Plaintiff’s objections (Dkt. #17) 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. #12) as the findings and
conclusions of the Court.

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Accordingly, it is ORDERED that Plaintiff’s First Amended Petition / Pleadings from
Original Petition with Stated Claims, Elements, Case Law & Specific Details as the Court Ordered
& Pleads for Relief (Dkt. #11) be DISMISSED, and that each and every of Plaintiff’s claims be

. 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 6th day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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