Ariosa v. DPS Texas

Filing 9

REPORT AND RECOMMENDATIONS; GRANTS 5 Motion to Proceed in forma pauperis filed by Tomas Burgo Ariosa; RECOMMENDS that the District Court DISMISS 3 Ariosas's Complaint. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TOMAS BURGO ARIOSA,
Plaintiff,
V.
DPS TEXAS,
Defendant.

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A-13-CV-908-LY

ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Tomas Burgo Ariosa’s (“Ariosa”) Application to Proceed In Forma

Pauperis (Dkt. No. 1). The District Court referred the above-motion to the undersigned Magistrate
Judge for a determination pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local
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. APPLICATION TO PROCEED IN FORMA PAUPERIS
After reviewing the financial information in Ariosa’s in forma pauperis motion, the Court
finds that he is indigent. Accordingly, the Court HEREBY GRANTS Ariosa in forma pauperis
status and ORDERS his Complaint be filed without pre-payment of fees or costs or giving security
therefor pursuant to 28 U.S.C. § 1915(a)(1). This indigent status is granted subject to a later
determination the action should be dismissed if the allegation of poverty is untrue or the action is
found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Ariosa is further advised that although
he has been granted leave to proceed in forma pauperis, a Court may, in its discretion, impose costs

of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621
(5th Cir. 1994).
As stated below, this Court has conducted a § 1915(e) review of the claims made in Ariosa’s
Complaint and is recommending his claims be dismissed under 28 U.S.C. § 1915(e). Therefore,
service upon Defendants should be withheld pending the District Court’s review of the
recommendations made in this report. If the District Court declines to adopt the recommendations,
then service should be issued at that time upon Defendants.
II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Because Ariosa has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review his Complaint under §1915(e)(2), which provides in relevant part that
“the court shall dismiss the case at any time if the court determines that . . . 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). “A
complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact,”
Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995), 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 (3rd Cir. 1995).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520–21 (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);
see also Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). In deciding whether a complaint
states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally cognizable
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claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial
plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. 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).
A.

Factual Allegations and Claims
From the limited information provided, this case appears to arise out of an attempt by Ariosa

to renew his Texas Identification Card (“Texas ID”) with the Texas Department of Public Safety
(“DPS”), which was denied by DPS. Dkt. No. 3. Ariosa claims that he is an immigrant who had
difficulty renewing his Form I-94 with the appropriate authorities earlier this year. Id. Although he
was ultimately able to obtain a new Form I-94, he claims that his subsequent application with the
DPS was denied. Id. Ariosa asserts that DPS claimed not to know about his renewed Form I-94.
Id. Ariosa contends that this is part of a continuing “campaign of hatred” against him and that he
has been subjected to improper persecution. Id.
B.

Merits of Ariosa’s Claim
Broadly construed, Ariosa appears to be alleging violations of his civil rights and

consequently, is attempting to bring his claims under 42 U.S.C. § 1983. “To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the
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United States, and must show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see also America Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49–50 (1999). In this case, Ariosa argues that DPS has mistreated him and
improperly denied him his new Texas ID. Dkt. No. 3. However, Ariosa alleges no facts or
circumstances that would demonstrate that DPS or its employees violated a right protected by the
Constitution or laws of the United States. In his short complaint, Ariosa contends that DPS failed
to honor, and pretended not to know about, his renewed Form I-94. Id. Yet a mere denial of
Ariosa’s application to renew his Texas ID does not necessarily implicate a protected constitutional
or statutory right, particularly where the alleged reason is that he has not satisfied all the
requirements for renewal.
Aside from the denial of Ariosa’s application for renewal of his Texas ID, Ariosa makes
conclusory allegations that the denial is “part of a local campaign of hatred against [him]” and that
he is a victim of persecution. Id. Ariosa also charges DPS with “breaking the law, violating [his]
human and civil rights, abusing their powers and mocking the federal government.” Id. A complaint
which only sets forth conclusory allegations is insufficient to state a claim under 42 U.S.C. § 1983.
See, e.g., Anderson v. Law Firm of Shorty, Dooley & Hall, 393 Fed.Appx. 214, 217 (5th Cir. 2010)
(per curiam) (noting that conclusory allegations were insufficient to state a conspiracy claim under
§ 1983); see also Al-Ra’id v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995) (concluding that petitioner could
not maintain his claim of racial discrimination based only on conclusory allegations of malice). In
this case, Ariosa has pleaded even less than the plaintiffs in the above-mentioned cases. Here,
Ariosa does not even allege that he was discriminated against by DPS or its employees when he

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applied to renew his Texas ID. Although the Court is sympathetic to Ariosa’s situation, his
complaint has not sufficiently stated a federal claim under 42 U.S.C. § 1983.
III. ORDERS AND RECOMMENDATIONS
In accordance with the foregoing discussion, the Court HEREBY GRANTS Ariosa in forma
pauperis status (Dkt. No. 1). Service upon Defendants should be withheld pending the District
Court’s review of the recommendations made in this report. If the District Court declines to adopt
the recommendations, then service should be issued at that time upon Defendants.
The undersigned FURTHER RECOMMENDS that the District Court DISMISS Ariosa’s
federal cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B).
IV. 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 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
banc).
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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 16th day of December, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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