White v. United States of America et al
Filing
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REPORT AND RECOMMENDATIONS that the court DISMISS Plaintiff's 1 Complaint and DISMISS any pending motions. Signed by Judge Andrew W. Austin. (klw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTHONY S. WHITE #863584/F10219
V.
UNITED STATES OF AMERICA and
VERNON STATE HOSPITAL
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A-11-CA-814-SS
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE SAM SPARKS
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 are Plaintiff’s complaint (Document No. 1); Plaintiff’s Motion for Court
Order Evaluation by VA Hospital or Release to VA Hospital (Document No. 5); and Plaintiff’s
Petition for Dayroom and Dining Room Surveillance (Document No. 6). Plaintiff, proceeding pro
se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Spruce Unit of the Vernon State Hospital, now referred to as the North Texas State Hospital. A
judicial district court of Hays County apparently found Plaintiff incompetent to stand trial and
transferred Plaintiff to the North Texas State Hospital. Plaintiff accuses the United States of
America of falsely sending him to the hospital for the competence program. In addition, Plaintiff
alleges the hospital allowed him to remain in an environment that aggravates his PTSD and
antisocial behavior. Plaintiff complains the dining room and dayroom have no cameras for the
protection of patients and fights happen in these areas. Plaintiff further complains the hospital is
giving him medication he does not need and is lying to him to make it seem like he needs to be in
the competence program. Plaintiff asserts the hospital has asked him to sign a form in order to
obtain Plaintiff’s military records. However, Plaintiff denies his military records are relevant to his
competency. Plaintiff asserts he is not receiving the right treatment. He requests “to be removed
from Vernon [S]tate [H]ospital and moved to a VA hospital, and more protection for patients from
staff.” Plaintiff indicates clients’ rights need to be investigated for negligence.
DISCUSSION AND ANALYSIS
A.
Standard Under 28 U.S.C. § 1915(e)
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
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
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).
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B.
Sovereign Immunity
Plaintiff’s claims against the United States are barred by sovereign immunity. Civil rights
suits against the United States without its consent are barred by sovereign immunity, Affiliated Prof’l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (per curiam) (citation
omitted), and the United States has not waived its sovereign immunity for Plaintiff’s claims. See
Brown v. United States, 653 F.2d 196, 199 (5th Cir. Unit A Aug. 1981). Accordingly, all claims
against the United States of America should be dismissed
C.
Eleventh Amendment Immunity
Plaintiff’s claims against the Vernon State Hospital are also barred. The Vernon State
Hospital, now referred to as the North Texas State Hospital, is a division of the Texas Department
of Mental Health and Mental Retardation. See TEX . HEALTH & SAFETY CODE § 532.001(b)(8). It
is therefore a state agency for the purpose of Eleventh Amendment immunity. See Sessions v. Rusk
State Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981) (holding that Rusk State Hospital, exclusively
controlled by the same Texas department, was a state agency for Eleventh Amendment purposes).
Absent an express waiver, the Eleventh Amendment precludes suits in which a state agency is named
as a defendant. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900 (1984).
There is no suggestion that Texas has waived its Eleventh Amendment immunity in this case.
There is a narrow exception to Eleventh Amendment immunity. See Ex Parte Young, 209
U.S. 123, 28 S. Ct. 441 714 (1908). It applies to suits that allege a violation of federal law that are
“brought against individual persons in their official capacities as agents of the state, and the relief
sought must be declaratory or injunctive in nature and prospective in effect.” Aguilar v. Tex. Dep’t
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of Crim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). The Ex Parte Young exception is inapplicable
in this case because Plaintiff has not named any individuals in their official capacities as defendants.
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice as
frivolous for want of jurisdiction and any pending motions be dismissed.
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
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 for causes of action which
accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order
of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate
while the inmate was in the custody of the Department or confined in county jail awaiting transfer
to the Department following conviction of a felony or revocation of community supervision, parole,
or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct
time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued
good conduct time, if the Department has previously received two final orders; or (3) 180 days of
an inmate’s accrued good conduct time, if the Department has previously received three or more
final orders. See, TEX . GOV ’T CODE ANN . § 498.0045 (Vernon 1998).
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It is further recommended that Plaintiff 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).
In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ
- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the
Eastern District of Texas.
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).
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.
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SIGNED this 11th day of October, 2011.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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