Harper v. State Bar of Texas

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge 2 is ADOPTED as the opinion of the District Court. This civil action is DISMISSED WITH PREJUDICE as frivolous and barred by the sanctions imposed by the Fifth Circuit Court of Appeals. The Clerk shall send a copy of this opinion to the Administrator of the Three Strikes List for the Eastern District of Texas. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 09/24/14. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DARRELL HARPER

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v.

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STATE BAR OF TEXAS

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CIVIL ACTION NO. 6:14cv688

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Darrell Harper, proceeding pro se, filed this lawsuit complaining of alleged
violations of his constitutional rights. This Court ordered that the case be referred to the United
States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the
Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The sole
named defendant is the State Bar of Texas.
Harper contends that the State of Texas has a history of discrimination and that the State Bar
failed to punish prosecuting attorney Jason Knutson for trying Harper on a charge of terroristic
threats, which Harper says should have been prosecuted in federal rather than state court. He
conceded that he has been sanctioned by the Fifth Circuit but says that these sanctions “should have
been stricken from the record as a crime of extortion toward plaintiff.” Harper asked for
$100,000,000.00 in damages.
After review of the pleadings, the Magistrate Judge issued a Report recommending that he
lawsuit be dismissed. The Magistrate Judge observed that the State Bar of Texas is an agency of the
State of Texas and thus has immunity from lawsuits for damages under the Eleventh Amendment
absent a waiver of sovereign immunity, which Harper has not shown.
The Magistrate Judge also noted that Harper has been sanctioned on two prior occasions by
the Fifth Circuit Court of Appeals, under the terms of which sanctions Harper is barred from filing
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any pleadings in the Fifth Circuit or the courts subject to its jurisdiction until those sanctions are
satisfied, which he has not done. The Magistrate Judge therefore recommended that the lawsuit be
dismissed as frivolous and as barred by the sanctions imposed by the Fifth Circuit.
In his objections, Harper asserts that “no state is a person” and so the State Bar does not have
immunity under the Eleventh Amendment. He says that he did not consent to the jurisdiction of the
Magistrate Judge and that the sanctions imposed on him by the Fifth Circuit violate the Canons of
Conduct for United States Judges.
Harper’s objections are without merit. As an agency of the State of Texas, the State Bar has
Eleventh Amendment immunity. Green v. State Bar of Texas, 27 F.3d 1083, 1087-88 (5th Cir.
1994). The case was referred to the Magistrate Judge for pre-trial matters and no consent is required
for such a referral. Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002). Harper’s contentions
that the sanctions imposed on him for his lengthy history of frivolous filings violate the Canon of
Judicial Conduct is patently meritless. See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975)
(no one, rich or poor, is entitled to abuse the judicial process).
The Court has conducted a careful de novo review of the pleadings in this case, including the
Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 2) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the that the above-styled civil action be and hereby is DISMISSED WITH
PREJUDICE as frivolous and barred by the sanctions imposed by the Fifth Circuit Court of
Appeals. It is further
ORDERED that the Clerk shall send a copy of this opinion to the Administrator of the Three
Strikes List for the Eastern District of Texas. Finally, it is

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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 24th day of September, 2014.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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