Wise v. Delgado et al
Filing
7
OPINION AND ORDER denying 1 MOTION/APPLICATION to Proceed In Forma Pauperis.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOHN WISE,
Plaintiff,
VS.
SERGIO DELGADO, et al,
Defendants.
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MISCELLANEOUS NO. C-12-14
OPINION AND ORDER DENYING APPLICATION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
Plaintiff, proceeding pro se, moved for leave to proceed in forma pauperis in this
lawsuit (D.E. 1). A hearing was held on his application March 21, 2012. Plaintiff
consented to proceed before a United States Magistrate Judge and this matter was
referred to undersigned to make all final decisions (D.E. 5, 6).
Indigency
Plaintiff testified that he receives Social Security disability income of
approximately $800 per month and his monthly expenses greatly exceed his income.
Plaintiff is a pauper for purposes of 28 U.S.C. § 1915.
Section 1915 Screening
Pursuant to 28 U.S.C. § 1915, plaintiff’s action must be dismissed if it fails to state
a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff bears
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the burden of establishing federal court jurisdiction. Rivera v. Wyeth-Ayerst
Laboratories, 283 F.3d 315, 318 (5th Cir. 2002) Plaintiff’s pro se complaint must be
read indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), and his
allegations must be accepted as true, unless they are clearly irrational or wholly
incredible, Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Plaintiff testified under oath about the events which gave rise to his lawsuit. On
New Year’s Eve 2011, plaintiff stopped for a drink at a bar near his home in Corpus
Christi. The supervisor at his job with Tyler, Inc., Lisa West, was at the bar and
suggested that plaintiff give another woman, visiting from the Netherlands, a ride on his
motorcycle. Plaintiff agreed and the woman climbed onto plaintiff’s motorcycle and
whispered to him that she wanted him to take her “out of there.” Plaintiff took her to his
house, and they were sitting down to have a drink when Lisa West drove up. Lisa West’s
boyfriend Danny hit and kicked the plaintiff while someone else dragged plaintiff’s
visitor into Lisa West’s car. As Lisa West drove off, she told the plaintiff he was fired.
Plaintiff was injured and called the Corpus Christi Police Department to file assault
charges. After an officer responded, plaintiff refused medical treatment, and he was
instructed by the police officer to go down to the Police Department later to file charges.
Plaintiff followed up and tried to file charges at the police department. He spoke
to defendant Detective Sergio Delgado and told him what happened. When Det. Delgado
contacted Ms. West, her boyfriend Danny, and the woman from the Netherlands, they all
reported to Det. Delgado that plaintiff had been trying to sexually assault the woman
from the Netherlands. When plaintiff next contacted the police department, he was told
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that if any criminal charges were to be filed, it would be plaintiff who would be charged
with sexual assault.
Plaintiff was fired from his job as a result of this incident. He seeks monetary
damages from Lisa West and the owner of Tyler, Inc., for firing him and for slandering
his reputation, from Danny for slander and for injuries resulting from the assault, and
from Corpus Christi Police Det. Sergio Delgado, for believing the lies that were told
about him and threatening to file criminal charges against him. No criminal charges have
been filed. Plaintiff was unable to articulate any federal causes of action to support the
filing of his lawsuit in federal court, and the court knows of none. Plaintiff was granted
thirty days to supplement his complaint with federal causes of action, and he has failed to
do so.
Plaintiff has not alleged that he was fired from his job because of his race,
religion, national origin or age. He has not alleged that Det. Delgado violated his
constitutional rights, nor has he stated any facts which would rise to the level of a
constitutional violation. Plaintiff alleged no facts to support a claim that Det. Delgado
was aware that the sexual assault allegations were false or that he was conspiring with the
other defendants to falsely charge plaintiff with sexual assault. Plaintiff has failed to
articulate any facts which would support federal question or diversity jurisdiction in
federal court.
Accordingly, plaintiff’s application for leave to proceed in forma pauperis is
denied because plaintiff failed to state a federal claim upon relief can be granted. All
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claims are dismissed without prejudice so that plaintiff can pursue his action in the courts
of the State of Texas.
ORDERED this 4th day of May, 2012.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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