Williams v. Wells Fargo Bank
REPORT AND RECOMMENDATION: that the District Court DISMISS Plaintiff's Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge Andrew W. Austin. (kkc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WELLS FARGO BANK
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiff Purnell William’s Application to Proceed In Forma Pauperis
and Plaintiff’s Ex Parte Notice and Application for: an Order to Show Cause, a Temporary
Restraining Order, a Preliminary Injunction, and Memorandum of Points and Authorities. (Clerk’s
Doc. No. 1), filed on August 9, 2012. 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.
After considering Plaintiff’s financial affidavit, the Court finds that Plaintiff is indigent.
Accordingly, the Court HEREBY GRANTS Plaintiff in forma pauperis status in the instant case.
Because Plaintiff has been granted leave to proceed in forma pauperis, the Court is required by
standing order to review each Complaint pursuant to 28 U.S.C. §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 . . .
the action or appeal(i)
is frivolous or malicious;
fails to state a claim on which relief may be granted; or
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.’”
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).
Plaintiff Purnell Williams has filed suit against Wells Fargo Bank seeking a preliminary
injunction enjoining Defendant from evicting and/or selling Plaintiff’s alleged residential property
located at 11213 Barn Owl Drive, Austin, Texas 78745. Plaintiff’s Complaint at 1. Plaintiff has also
filed an application for an Order to Show Cause why a preliminary injunction should not be granted
enjoining Defendant from evicting Plaintiff from the property and is seeking an ex parte Temporary
Restraining Order to “restrain” Defendant from evicting and/or selling the aforementioned property.
Id. In his Statement of Fact, Plaintiff alleges that he acquired the property in question through
adverse possession on July 6, 2012. Plaintiff’s Statement of Fact. The property was originally
occupied by David L. Carreon who, following an adverse judgment by the Justice of the Peace,
Travis County, was served with a Writ of Possession entitling Wells Fargo to possession of the
property on June 28, 2012. Id. Plaintiff states that he found the property vacated and abandoned in
May of 2012 and began frequenting the property shortly thereafter. Id. He further states that in June
of 2012, he discovered a notice placed on the door of the home by MCS, an agent of Wells Fargo,
declaring that the property had been vacated. Id. In July of 2012, Plaintiff filed both an affidavit and
a UCC Financing Statement in Travis County, “officially” asserting his adverse possession of the
Barn Owl Drive Property. Id. Plaintiff asserts that he does not know and is not affiliated in any way
with David L. Carreon, the former occupier of the property, and emphasizes that he took possession
of the abandoned property in July of 2012 after Mr. Carreon had clearly vacated the premises. Id.
Plaintiff asserts that he has been residing on the property, has been making all necessary repairs and
improvements, and has placed a lien on the property which “supersedes the jurisdiction of the Justice
of the Peace.” Id. Plaintiff has submitted to the Court a “Supplement” to his Complaint with a
“Declaration of the Notice of Lien” attached. The “Declaration of the Notice of Lien” states that
Williams is a contractor who made a contract with himself for improvements to the Barn Owl
property in the amount of $563,739.00.
As stated above, section 1915(e)(2)(B) provides that a district court shall dismiss an in forma
pauperis complaint, at any time, if the district court determines that the action is frivolous. See 28
U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous when it lacks an arguable basis either in law or
in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when
it is based on an indisputably meritless legal theory. Id. at 327.
After reviewing the complaint, the Court is unable to recognize any legally cognizable claim.
It appears from the pleadings that the only basis for Plaintiff’s claim is that he “adversely possessed”
the foreclosed property just months after it was vacated and, therefore, he cannot be evicted as the
“rightful owner” of the land. The Court will assume for the purposes of this analysis that Plaintiff
is attempting to assert diversity jurisdiction on the basis that Wells Fargo is a foreign corporation.
28 U.S.C.A. §1332. However, even assuming jurisdiction, his pleadings fail to establish any claim
of legal merit. While Plaintiff claims to have acquired the aforementioned property through adverse
possession, there is absolutely no merit to this claim, as Plaintiff’s allegations do not even come
close to establishing the necessary elements of adverse possession. To establish an adverse
possession claim under Texas law, Plaintiff must demonstrate an actual and visible appropriation
of the land in question for a period of at least 10 or more consecutive years. TEX . CIV . PRAC & REM
§ 16.026; see Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). Plaintiff, who appears to be a
squatter, has admittedly occupied the Barn Owl Drive property for mere months, which is not even
remotely close to the required 10 year minimum. As a result, Plaintiff has failed to establish any
cognizable claim for adverse possession under state or federal law.
To the extent Plaintiff attempts to assert a materialman’s lien or mechanic’s lien on the Barn
Owl property, this claim also fails. In order to be entitled to a materialman’s lien on any property,
Plaintiff is required to prove that he provided the materials or labor by virtue of a contract with the
owner of the property or his agent, trustee, receiver, contractor, or subcontractor. See Tex. Prop.
Code Ann. § 53.021(a); see also In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex.
2005) (providing that a direct contractual relationship is required between the owner of the property
and the mechanic, materialman, or artisan). Despite his claims of adverse possession, Plaintiff is not
the owner of the Barn Owl property and did not have the authority to enter a contract with any
contractor—including himself—to make improvements on the property.
undersigned recommends that the Complaint be dismissed with prejudice as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B).
The Magistrate Judge RECOMMENDS that the District Court DISMISS Plaintiff’s
Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 fourteen (14) 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,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
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
SIGNED this 6th day of September, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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