Hess v. State of Texas

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying as moot 2 MOTION/APPLICATION to Proceed In Forma Pauperis, adopting 5 Report and Recommendations. The Clerk of Court is directed to close this matter.(Signed by Judge Fernando Rodriguez, Jr) Parties notified.(DorinaReyna, 1)

Case 1:22-cv-00061 Document 16 Filed on 09/16/22 in TXSD Page 1 of 3
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
SCOTT W. HESS,
Plaintiff,
VS.
STATE OF TEXAS,
Defendant.

§
§
§
§
§
§
§
§
§

September 16, 2022
Nathan Ochsner, Clerk

CIVIL ACTION NO. 1:22-CV-061

ORDER
Plaintiff Scott W. Hess, representing himself, filed this action against the State of Texas,
alleging grievances with the criminal process that ultimately led to his conviction for indecent
exposure to a minor. (Complaint, Doc. 1) Hess appears to seek the overturn of his conviction,
although his pleading is not clear and he cites no statutory basis for his request.
The Magistrate Judge recommends that: (1) to the extent Hess is collaterally attacking his
conviction, his claims should be dismissed without prejudice for lack of jurisdiction; and (2) to
the extent that he is raising civil claims under the Americans with Disabilities Act, his claims
should be dismissed with prejudice to their being asserted again until the conditions of Heck v.
Humphrey, 512 U.S. 477 (1994), are met. (Report and Recommendation, Doc. 5)
On August 23, 2022, Hess filed a letter requesting the Magistrate Judge’s recusal and
disagreeing with certain factual statements in the Report and Recommendation. (Ltr., Doc. 14)
As Hess is representing himself, the Court must “liberally construe[ ]” his letter. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Under this standard, Hess’s letter presents both a motion to
recuse the Magistrate Judge and objections to the Report and Recommendation.
I.

Motion for Recusal
Hess requests the Magistrate Judge’s recusal based on a purported “conflict of interest”

arising out of Hess’s previous action under 28 U.S.C. § 2254, in which the same Magistrate Judge
recused himself. (See Case No. 1:13-cv-190, Doc. 35)

Case 1:22-cv-00061 Document 16 Filed on 09/16/22 in TXSD Page 2 of 3

In the current lawsuit, Hess previously requested the recusal of the Magistrate Judge.
(Motion, Doc. 9) The Court analyzed the request and ultimately denied it. (Order, Doc. 10) In
his most recent letter, Hess presents no new arguments on this issue. For the reasons articulated
in the Court’s prior Order, the Court again concludes that the Magistrate Judge’s recusal is not
warranted.
II.

Objections
Construing the letter as an objection to the Report and Recommendation, Hess makes two

principal arguments. First, he contends that the Magistrate Judge misunderstood the allegations
by wrongly concluding that Hess alleges that he was “‘attacked’ by police.” (Ltr., Doc. 14) Second,
Hess asserts that the Magistrate Judge “discredit[s]” him by describing him as “dillusional (sic)”
and his claims as “fantastic”. (Id. at 2)
Hess’s first objection is without merit. The Report and Recommendation does not suggest
explicitly or implicitly that Hess was attacked by police. The only reference to attacks by police in
the Report and Recommendation is within a quotation from a Fifth Circuit decision describing
the application of the Heck analysis. (R&R, Doc. 5, 6) Hess bases his initial objection on a
misguided reading of the Report and Recommendation.
Hess’s second objection also fails. In a footnote, the Report and Recommendation
describes Hess’s allegations “largely as fantastical and delusional”. (Doc. 5, 5 n.2) But the
Magistrate Judge does not base the recommendation on its view of Hess’s allegations: “In any
event, the Heck claim preclusion bar means the Court does not need to reach the issue of whether
Hess’s fantastical allegations have stated a claim to relief under the ADA.” (Id.) Hess makes no
objection to the application within the Report and Recommendation of the doctrine of Heck claim
preclusion, and the Court finds the application of that doctrine correct.
III.

Conclusion
For the reasons indicated in this Order, the Court OVERRULES Hess’s objections and

ADOPTS the Report and Recommendation (Doc. 5). It is:

Case 1:22-cv-00061 Document 16 Filed on 09/16/22 in TXSD Page 3 of 3

ORDERED that the motion to recuse the Magistrate Judge as contained within Plaintiff
Scott W. Hess’s letter to the Court (Doc. 14) is DENIED;
ORDERED that to the extent that Plaintiff Scott W. Hess is collaterally attacking his
conviction, his claims are DISMISSED WITHOUT PREJUDICE for lack of jurisdiction;
ORDERED that to the extent that Plaintiff Scott W. Hess is raising civil claims under the
Americans with Disabilities Act, his claims are DISMISSED WITH PREJUDICE to their being
asserted again until the Heck conditions are met; and
ORDERED that Plaintiff Scott W. Hess’s Motion to Proceed in Forma Pauperis (Doc. 2)
is DENIED AS MOOT.
The Clerk of Court is directed to close this matter.
Signed on September 16, 2022.
____________________________
Fernando Rodriguez, Jr.
United States District Judge