Brodzki v. City of North Richland Hills et al

Filing 4

REPORT AND RECOMMENDATIONS that the Court DISMISS as FRIVOLOUS Brodzki's 5 Complaint. It is ORDERED that Brodzki's 1 Motion to Proceed in forma pauperis is GRANTED. Signed by Judge Andrew W. Austin. (klw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTHONY BRODZKI
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V.
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A-11-CA-223-SS
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THE STATE OF TEXAS
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ANTHONY BRODZKI
V.
CITY OF NORTH RICHLAND HILLS
AND STATE OF TEXAS

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A-11-CA-337-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff’s Application to Proceed In Forma Pauperis (Clerk’s Doc. No.

1). The Court submits this Report and Recommendation to the United States District Court pursuant
to 28 U.S.C. §636(b) and Rule 1 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 Magistrate Judges.
I. ANALYSIS
Plaintiff Anthony Brodzki (“Plaintiff”)—who resides in North Richland Hills, Texas—has
filed two separate Complaints with the Court. In the first, styled Anthony Brodzki v. State of Texas,
No. A-CV-223-SS (W.D. Tex. 2011), he asserts various violations of his civil rights and tort claims
against the State of Texas. In the second Complaint, styled Anthony Brodzki v. City of North
Richland Hills and State of Texas, No. A-CV-337-SS (W.D. Tex. 2011), he alleges violations of his

civil rights and tort claims against the State of Texas and the City of North Richland Hills. After
considering Plaintiff’s financial affidavits in each case, the Court finds that Plaintiff is indigent.
Accordingly, the Court HEREBY GRANTS Plaintiff in forma pauperis status in both cases listed
above.
Because Plaintiff has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review each Complaint pursuant to §1915(e)(2). That statute reads in pertinent
part as follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . .
(B) the action or appeal(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B)(i)-(iii). An action is frivolous if it “lacks an arguable basis either in law
or in fact,” Neitzke v. Williams, 490 U.S. 319, 325 (1989), and the claims “are of little or no weight,
value, or importance, not worthy of serious consideration, or trivial.” Deutsch v. United States, 67
F.3d 1080, 1083 (3d Cir. 1995). A complaint is malicious when it “duplicates allegations of another
pending federal lawsuit by the same plaintiff.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520-521 (1972). The court must “accept as true factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
A pro se complaint can only be dismissed for failure to state a claim when “it appears ‘beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”

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Haines v. Kerner, 404 U.S. 519, 520–521 (1972). However, the petitioner’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).
In his first case Plaintiff alleges that “the state patrol has impeded me, forced me to leave the
state, on recent visits, called me on my cell phone and told me I was an undocumented pedophile and
pulled my penis out in a public place and was not welcome in the state.” See Complaint at p. 1.
Plaintiff alleges violations of 42 U.S.C. § 1983, “emotional infliction of stress,” assault, battery,
“false imprisonment of the mind,” defamation, and slander. Id. He requests $5,000,000.00 in
damages.
In his second case, Plaintiff generally alleges that the mayor of North Richland Hills is
electronically harassing Plaintiff by implementing police dispatch equipment to spy on his thoughts
and physically hurt him. Plaintiff asserts the following to support his claims (spelling is Plaintiff’s):
I am torted and battered by North Richland Hills residence daily. This has gone on
for three years. The police department in June, with police standing on the screen,
where so bold as to run me out of the neighborhood by using disorientation police
equipment, ordered by Mr. Trevino, to Jim Purdue, to run me out of the city. In June
of 2008, he used his disorientation equipment to kick me out of his city, and
succeeded. He had help and still has help from the state patrol and various state
cronies who control the state patrol. He distorts my sleep, by ordering state medical
workers to use the disorientation equipment first used in Nevada, see background
information, to keep me from sleeping. He had teamed himself with ambient
corporation, a campany which has manufactured the collar which reads the minds of
people who have strokes, technology used on stroke patients. This conduct goes on
day after day. He has assaulted me and has ordered the assault and torture of me over
5000 times in the last three years. He rationalizes to me, through his police that I am
unconvinced pedophile and he has the right to take the law into his own hands along
with his police chief. . . .
Plaintiff’s Complaint in A-11-CA-337 SS, at p. 1-2.
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Plaintiff also alleges that North Richland Hills Mayor Trevino: (1) has a heavyset person who
listens to his thoughts in the library; (2) instructed the police chief to put up child pornography on
a police screen while Plaintiff waited for his brother to go to the police restroom; (3) authorized the
use of horrible equipment that can cause the loss of an eye; and (4) authorized the use of equipment
that stings the penis area. Id. Plaintiff also claims that Mayor Trevino got the police and residents
to call him on his cell phone and ask him to leave at least 1000 times in the last month. Id. at p. 2.
Plaintiff requests half a billion dollars in damages for these alleged invasions of his privacy and
assaults.
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 and presumably under state tort law.
With regard to his claims against the State of Texas, the Eleventh Amendment bars claims against
a state brought pursuant to 42 U. S.C. § 1983. Aguilar v. Tex. Dep't of Crim. Justice, Institutional
Div., 160 F.3d 1052, 1054 (5th Cir. 1998). A state's sovereign immunity is not waived for claims
pursuant to § 1983. Id. Additionally, the State of Texas, its agencies, and subdivisions generally
enjoy sovereign immunity from general tort liability. County of Cameron v. Brown, 80 S.W.3d 549,
554 (Tex. 2002). There are three exceptions to the State’s general immunity from tort claims: “the
use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use
of property.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003); TEX . CIV .
PRAC. & REM .CODE § 101.021. None of these exceptions apply to Plaintiff's allegations, and thus
Plaintiff's state law tort claims are precluded by the State’s sovereign immunity.
With regard to his claims against the City of North Richland Hills, Plaintiff’s claims make
little sense and he points to no facts supporting a constitutional violation or a tort. Based upon his
“fanciful, fantastic and delusional” allegations, Plaintiff’s Complaint is subject to dismissal for being
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“factually frivolous” since his allegations are “clearly baseless.” Hicks v. Garner, 69 F3d 22, 25 (5th
Cir. 1995) (quoting Denton v. Hernandez, 504 U.S. 25, 33-34 (1992)). Based upon the foregoing,
the undersigned recommends that the complaints be dismissed as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
Additionally, Brodzki has a history of filing frivolous lawsuits. He has alleged these same
or similar facts in many previous suits, all of which have been dismissed. According to PACER,
Brodzki has filed more than 60 cases, including appeals, since August 26, 2009. The Court also
notes that the Northern District of Illinois has issued a vexatious litigant order against Brodzki. See
In Re: Anthony J. Brodzki, Civil Docket No. 1:10-CV-04591 (Order dated July 23, 2010). Brodzki
has also been monetarily sanctioned in the Northern District of Texas based upon his history of
submitting multiple frivolous lawsuits. See Brodzki v. North Richland Hills Police Department,
Civil Action No. 3:10-CV-0539-P-BH (Order dated March 31, 2010). The docket reflects that
Brodzki never paid that sanction. Many of Brodzki’s prior lawsuits were found to be frivolous and
as one Court stated “wholly within in the realm of fantasy.” Brodzki v. Regional Justice Center,
D.Nev. Civil Docket No. 2:10-CV-01091-LDG-LRL (Order dated July 22, 2010). Like this case,
Brodzki’s prior claims frequently involved allegations of electronic harassment by law enforcement.
The Court possesses the inherent power “to protect the efficient and orderly administration
of justice and . . . to command respect for the court’s orders, judgments, procedures, and authority.”
In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Included in such inherent power is “the power to
levy sanctions in response to abusive litigation practices.” Id. Sanctions may be appropriate when
a pro se litigant has a history of submitting multiple frivolous claims. FED . R. CIV . P. 11; Mendoza
v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993).
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Based on Plaintiff’s past and continued conduct, the Court warns Plaintiff that if he continues
to file meritless, vague, and impossible claims, the Court may impose sanctions in the future. Such
sanctions may include a broad injunction, barring him from filing any future actions in the Western
District of Texas without leave of court, as well as monetary sanctions. See Filipas v. Lemons, 835
F.2d 1145, 1146 (6th Cir. 1987) (order requiring leave of court before plaintiffs file any further
complaints is proper method for handling complaints of prolific litigators).
II. RECOMMENDATION
The Magistrate Judge RECOMMENDS that the District Court DISMISS Anthony Brodzki’s
Complaints in both cases noted above as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The
Magistrate FURTHER RECOMMENDS that the District Court ENTER the warnings outlined
above.
III. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within ten (10) days after the party is served with a copy of the Report shall
bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
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472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 2nd day of June, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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