Morales v. Lt. Martin

Filing 7

AMENDED REPORT AND RECOMMENDATIONS re 1 Complaint filed by Peter Morales. (It is therefore recommended that Plaintiffs complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e).). Signed by Judge Andrew W. Austin. (jk, )

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION PETER MORALES #18444-280 V. LT. MARTIN § § § § §

A-10-CA-015-LY

AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE To: The Honorable Lee Yeakel, United States District Judge The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002. Before the Court is Plaintiff's complaint. Plaintiff, proceeding pro se, has paid the full filing fee for this case. STATEMENT OF THE CASE At the time he filed his complaint, Plaintiff was confined in FMC Butner. According to Plaintiff, he was arrested on February 2, 2009, by ATF agents. He was then detained and remanded to the custody of the United States Marshal's Service, which placed him in the Guadalupe County Jail. Plaintiff sues Lieutenant Martin employed at the Guadalupe County Jail. The only allegation made against Lieutenant Martin is that he did not adequately respond to Plaintiff's grievances during the three months Plaintiff was confined in the jail. Plaintiff requests monetary damages and a federal investigation into the procedures for pretrial detainees at the Guadalupe County Jail.

DISCUSSION AND ANALYSIS Although Plaintiff paid the full filing fee for this case, his claims must be screened pursuant to 28 U.S.C. § 1915A. On review, the Court must dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998). When reviewing a plaintiff's complaint, the court must construe plaintiff's allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972). However, the plaintiff's pro se status does not offer him "an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). Plaintiff's complaint is frivolous. Plaintiff does not have a federally protected interest in having grievances resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371 (5th Cir. 2005). RECOMMENDATION It is therefore recommended that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). It is further recommended that the Court include within its judgment a provision expressly and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff from filing any lawsuits in this Court without first obtaining the permission from a District Judge

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of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some combination of these sanctions. It is further recommended that Plaintiff should be warned that if Plaintiff files more than three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief may be granted, then he will be prohibited from bringing any other actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). OBJECTIONS Within 14 days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).

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To the extent that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. SIGNED this 11th day of March, 2010.

_____________________________________ ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

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