v. Winslow et al

Filing 7

Memorandum Opinion and Order... Plaintiff's complaint and anything that he might have intended to be a claim or cause of action stated in it must be dismissed because of frivolousness, maliciousness, and failure to state a claim upon which rel ief may be granted. As to two defendants who have potential immunity from suit, each has absolute immunity if plaintiff has in mind either of them has liability to him for anything she or he did in an official capacity. The court ORDERS that the co mplaint by which the abovecaptioned action was initiated, and anything in it that plaintiff intended to be a claim or cause of action, be, and are hereby, dismissed pursuant to the authority of 28 U.S.C. § 1915A(b). (Ordered by Judge John McBryde on 1/20/2017) (wxc)

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IN THE UNITED STATES DISTR c.f~~\f;-,:2:~
NORTHERN DISTRICT OF T XAS
.
FORT WORTH DIVISIO

•
WILLIAM MAVERICK WINSLOW,
SPECIAL AGENT, DEPARTMENT OF
THE ARMY,
Plaintiff,

vs.
KEN PAXTON, ATTORNEY GENERAL,
ET AL.,
Defendants.

'5S. CL'::'·'" ·

2 0 20!7

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·, I.

NO. 4:17-CV-057-A

MEMORANDUM OPINION
and
ORDER
The above-captioned action was initiated January 19, 2017,
by the filing of a Prisoner's Civil Rights Complaint by
plaintiff, William Maverick Winslow, who identifies himself in
the style of his complaint as "Special Agent, Department of the
Army."

The court has concluded that such complaint, and all

purported claims and causes of action asserted therein, should be
dismissed sua sponte pursuant to the authority of 28
§

u.s.c.

1915A(b).
I.

Statutory and Case Authorities for the Sua Sponte Dismissal
Plaintiff is a prisoner who is seeking redress from a
governmental entity or officer or employee of a governmental
entity.

Section 1915A of Title 28 United States Code obligates

the court "to review, before docketing, if feasible, or, in any

event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.•

28 U.S.C.

§

1915A(a).

In pertinent part,

§

1915A(b)

provides as follows:
On review, the court shall . . . dismiss the
complaint
if the complaint-(1)
is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2)
seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C.

§

1915A(b).

Factors to be considered in determining whether the court
should dismiss a case for one of the statutory reasons mentioned
above are as follows:
A.

Frivolousness
A claim is frivolous if it "lacks an arguable basis either

in law or in fact.•
(1989).

Neitzke v. Williams, 490 U.S. 319, 325

The "term 'frivolous,' when applied to a complaint,

embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.•

Id.

When evaluating the frivolousness issue, the court is to
bear in mind that the

§

1915 review provisions for possible sua

sponte dismissal are "designed largely to discourage the filing

2

of, and waste of judicial and private resources upon, baseless
lawsuits that paying litigants generally do not initiate because
of the costs of bringing suit and because of the threat of
sanctions for bringing vexatious suits .

,,

Id. at 327.

To

that end, the statute "accords judges . . . the unusual power to
pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless."

Id.; see also Denton v. Hernandez, 504 U.S. 25, 32

(1992).
With respect to a district court's evaluation as to whether
facts alleged are "clearly baseless," the Supreme Court in
Denton, in response to a request that it define the "clearly
baseless" guidepost with more precision, said "we are confident
that the district courts, who are 'all too familiar' with
factually frivolous claims, are in the best position to determine
which cases fall into this category," and thus declined "the
invitation to reduce the 'clearly baseless• inquiry to a
monolithic standard."
B.

Denton, 506 U.S. at 33 (citation omitted).

Maliciousness
There are court decisions upholding a sua sponte dismissal

for maliciousness pursuant to the authority of

§

1915 where the

action before the court "involves a duplicative action arising
from the same series of events and alleging many of the same
3

facts as an earlier suit."

~,

See,

Brown v. Texas Bd. of

Nursing, 554 F. App'x 268, 269 (5th Cir. 2014).

In Ballentine v.

Crawford, 563 F. Supp. 627, 628-29 (N.D. Ind. 1983), the court
held that "a complaint plainly abusive of the judicial process is
properly typed 'malicious' within the context of Section 1915(d)
which authorizes immediate dismissal of the same."

A suit

brought for the purpose of harassing the defendants is brought
maliciously.
C.

Daves v. Scranton, 66 F.R.D. 5, 8 (E.D. Pa. 1975).

Failure to State a Claim
Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. civ. P. 8(a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U. s. 544, 555 (2007)
quotation marks and ellipsis omitted) .

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
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unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

the framework of a complaint, they must be supported by factual
allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.

Id.

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.

Twombly, 550

"Determining whether a complaint states a

plausible claim for relief .

[isl a context-specific task

that requires the reviewing court to draw on its judicial
experience and common sense."

Iqbal, 556 U.S. at 679.

The pleading standards stated above apply Separately to each
claim and each defendant in a plaintiff's complaint.
D.

Immunity From Relief
Plaintiff fails to make any allegations that sensibly

describe any conduct of any defendant he names in such a way that
the reader of the complaint can determine what any of the
defendants did that caused them to be sued by plaintiff.

The

allegation is made that defendant Sharon Wilson is District
Attorney, Tarrant County, Texas.

If plaintiff were to be
5

complaining of any conduct on her part related to her duties as a
prosecutor, she would be subject to immunity from suit.

If the

undersigned were being sued for judicial conduct, the undersigned
would be immune from suit.

There is no way to determine from the

wording of the complaint why he has sued Sharon Wilson.
His description in the complaint of the acts or omissions of
the undersigned which he claimed harmed him are just as
meaningless.

1

The only conduct of the undersigned plaintiff mentions in a
comprehensible way is under the heading "PREVIOUS LAWSUITS" on
page 2 where he mentions a lawsuit he filed on December 16, 2016,
that was assigned to the undersigned and was dismissed on
December 20, 2016. 2

'His description of the acts or omissions of the undersigned which he claimed harmed him was as
follows:
Violation of the Organized Crime Control Act of 1970
Violation of U.S. Supreme Court Decision Baker 1962 U.S. Supreme Court
Violation of Sections 792, 793, 794 of Title 18 U.S.C.
Aided and Abetted, Section 2 of Title 18 U.S.C. Espionage
Pattern of Racketeering Activity Relating to Nuclear Material, in Violation of Section
831 of Title 18 U.S.C.
Section 1962 of Title 18 U.S.C., the Atomic Energy Act of 1954
Misprision of Felony Did Violate Section 4 of Title 18 U.S.C., Aided and
Violations of the Foreign Agents Registration Act of 1938, the Internal Security Act of
1950, the Subversive Activities Control Act of 1950
The Communist Control Act of 1954.
Doc. I at 3, 1! IV.B., Def. #5.
'The defendants plaintiff named in the December 2016 lawsuit, which was docketed as Case No.
4:16-CV-1147-A, were Ken Paxton, Attorney General of Texas, and Dean [sic] Anderson, Sheriff of
Tarrant County, Texas. In that action he appeared to be complaining of his prosecution in Tarrant
County, Texas, of the offense of aggravated assault/deadly weapon. Apparently the instant action is
something of a continuation of the dismissed action.
6

II.
Recusal Would Not Be Appropriate
The undersigned has considered whether there is any reason
why the undersigned should recuse in this action.

In reaching

the decision not to recuse, the undersigned is mindful of the
principle that "[t]here is as much obligation for a judge not to
recuse when there is no occasion for him to do so as there is for
him to do so when there is."
985,

994

(10th Cir. 1993)

United States v. Cooley, 1 F.3d

(internal quotation marks omitted).

Also, the undersigned is giving effect to the principles
that:

"absolute immunity is properly viewed as immunity from

suit rather than a mere defense to liability,"
284

Boyd, 31 F.3d at

(internal quotation marks and emphasis omitted) ; "immunity

[is] a threshold question, to be resolved as early in the
proceedings as possible"; and "the essence of absolute immunity
is its possessor's entitlement not to have to answer for his
conduct in a civil damage action," id.

(internal quotation marks

omitted) .
In Graves v. Hampton, the Fifth Circuit held that "[a]

claim

is based upon an indisputably meritless legal theory if the
defendants are immune from suit."
1993).

1 F.3d 315, 317

(5th Cir.

Thus, as a matter of law, the undersigned should not be a

defendant in this lawsuit, and the decision of the undersigned

7

not to recuse cannot have any legal bearing on the undersigned's
potential liability inasmuch as it is indisputable that there is
no potential that the undersigned has any liability.

The ruling

of the court as to the other defendants has not been influenced
by the fact that the undersigned is named as a defendant.

If the

undersigned were to recuse, as a matter of law the rulings of the
replacement judge would have to be the same as the undersigned's.
If the undersigned were to recuse, judicial resources would
be wasted by the reassignment of this action to another judge.
This undoubtedly would serve as something of a reward to
plaintiff for his inappropriate litigation conduct.

The Fifth

Circuit has made clear that a judge is not disqualified because a
litigant sues the judge.

See Matter of Hipp, Inc., 5 F.3d 109,

116 (5th Cir. 1993); see also Olsen v. Wainwright, 565 F.2d 906,
907 (5th Cir. 1978); United States v. Grismore, 564 F.2d 929, 933
(5th Cir. 1977)

(stating that "[a]

judge is not disqualified

merely because a litigant sues or threatens to sue him").
III.

Dismissal is Mandatory
As noted above,

§

1915A(b) requires a court to dismiss a

complaint if it is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.

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Each and every one of

those grounds exists for dismissal of plaintiff's complaint and
whatever claims or causes of action he might be purporting to
assert in the complaint.

The fact is, the court cannot discern

from a study of the complaint that plaintiff has alleged anything
that could be identified as defining a claim against any of the
defendants.

He named as defendants Ken Paxton, Attorney General,

Sharon Wilson, The State of Texas, Dee Anderson, Sheriff of
Tarrant County, Texas, and the undersigned.

But in the sections

of the complaint where he is called upon to describe the act or
omission of each defendant which he claimed harmed him, he
provided nothing but gibberish and citations to statutes, etc.,
without any explanation as to how any of the cited material
pertains to anything having to do with any of the defendants.
His "STATEMENT OF CLAIM" on page 4 of his complaint does not
provide clarification.

Plaintiff's complaint and anything that

he might have intended to be a claim or cause of action stated in
it must be dismissed because of frivolousness, maliciousness, and
failure to state a claim upon which relief may be granted.

As to

two defendants who have potential immunity from suit, each has
absolute immunity if plaintiff has in mind either of them has
liability to him for anything she or he did in an official
capacity.

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IV.
Order
Therefore,
The court ORDERS that the complaint by which the abovecaptioned action was initiated, and anything in it that plaintiff
intended to be a claim or cause of action, be, and are hereby,
dismissed pursuant to the authority of 28 U.S.C. § 1915A(b).
SIGNED January 20, 2017.

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