Kemppainen v. United States et al
Filing
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REPORT AND RECOMMENDATIONS that the Court DISMISS Kemppainen's Complaint. ORDER Granting 1 Motion to Proceed in forma pauperis filed by Gordon Kirk Kemppainen. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GORDON KIRK KEMPPAINEN
V.
UNITED STATES, ET AL.
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A-14-CV-493-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 Plaintiff Gordon Kirk Kemppaninen’s (“Kemppainen”) 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 Kemppainen’s in forma pauperis motion, the
Court finds that he is indigent. Accordingly, the Court HEREBY GRANTS Kemppainen 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). Kemppainen 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
Kemppainen’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
A.
Standard of Review
Because Kemppainen has been granted leave to proceed in forma pauperis, the Court is
required by standing order to review his Complaint under §1915(e)(2)(B), 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)(B). “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 (3d 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
claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V
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(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).
B.
Merits of Kemppainen’s lawsuit
In his Complaint filed under 42 U.S.C. § 1983, Kemppainen complains that the United States
District Court for the Southern District of Texas and the Court of Appeals for the Fifth Circuit
denied him certificates of appealability “when it was very clear and obvious” that his constitutional
rights were violated and thus entitled to relief. Kemppainen is attempting to challenge the District
Court and the Fifth Circuit’s rulings on his eight previous unsuccessful § 1983 lawsuits and Petition
for Writ of Habeas Corpus brought under 28 U.S.C. § 2254. See 2:2003-cv-083; 2:2003-cv-054;
2:2003-cv-055; 2:2003-cv-229; 2:2003-cv-389; 2:2003-cv-3129; 2:2003-cv-463; 2:2003-cv-194;
2:2003-cv-351; and 2:2003-cv-1984 (barring Kemppainen from proceeding IFP based on his three
strikes). On October 15, 2013, the Supreme Court of the Untied States denied Kemppainen in forma
pauperis status on the basis that “petitioner has repeatedly abused this Court’s process.”
Kemppainen v. Texas, 134 S.Ct. 437 (2013).
Kemppainen is once again attempting to challenge the conditions of his confinement while
he was incarcerated by the Texas Department of Criminal Justice. The Southern District of Texas
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and the Fifth Circuit have already ruled on all of the claims Kemppainen asserts in the instant suit.
The Fifth Circuit has held that IFP complaints may be dismissed as frivolous pursuant to § 1915
“when they seek to relitigate claims which allege substantially the same facts arising from a common
series of events which have already been unsuccessfully litigated by the IFP plaintiff.” Wilson v.
Lynaugh, 878 F.2d 846, 850 (5th Cir.), cert. denied, 493 U.S. 969 (1980). Because Kemppainen has
presented the same claims and arguments that he has asserted in his previous lawsuits, this lawsuit
should be dismissed as frivolous and malicious under §1915(e)(2)(B)(I).
Kemppainen’s lawsuit is also frivolous because he is attempting to bring this lawsuit against
the United States, which is not a proper defendant in a § 1983 lawsuit. See Jackson v. United States,
68 F.3d 471, at *1 (5th Cir. 1995) (“This court neither makes nor intimates any decision concerning
the merit of this allegation, but we note that in an action instituted under 42 U.S.C. § 1983 the proper
defendants would be the law enforcement officials or other state actors rather than the United States
Government”), cert. denied, 516 U.S. 1150 (1996). In addition, Kemppainen has also named the
Honorable Edward C. Prado, United States Circuit Judge with the United States Court of Appeals
for the Fifth Circuit, and the Honorable Hayden Head, United States District Judge with the United
States District Court for the Southern District of Texas, as defendants in this case. Federal judges
such as Judge Prado and Judge Head are immune from suit under the doctrine of judicial immunity.
“Judges enjoy absolute judicial immunity for judicial acts performed in judicial proceedings.” Mays
v. Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996).
Based upon the foregoing, the Court concludes that his cause of action is frivolous and
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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III. ORDERS AND RECOMMENDATIONS
The undersigned Magistrate Court RECOMMENDS that the District Court DISMISS
Gordon Kirk Kemppaninen’s lawsuit as frivolous and malicious 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).
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.
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SIGNED this 4th day of June, 2014.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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