Williams v. Wells Fargo
Filing
2
ORDER GRANTING 1 Motion for Leave to Proceed in forma pauperis; REPORT AND RECOMMENDATIONS re 3 Complaint. (The Magistrate Judge RECOMMENDS that the District Court DISMISS Williams Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)). Signed by Judge Andrew W. Austin. (jk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
PURNELL WILLIAMS
§
§
§
§
§
V.
WELLS FARGO
A-14-CV-760 LY
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Purnell Williams’ Application to Proceed In Forma Pauperis (Clerk’s
Doc. No. 1), filed on August 13, 2014. 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
A.
IFP Status
After considering Plaintiff Purnell Williams’s financial affidavit, the Court finds that he is
indigent. Accordingly, the Court HEREBY GRANTS Williams in forma pauperis status in the
instant case. Because Williams has have been granted leave to proceed in forma pauperis, the Court
is required by standing order to review the action pursuant to 28 U.S.C. §1915(e)(2).
B.
Review under Section 1915
Section 1915(e)(2) provides that a court shall dismiss a case at any time if the court
determines that:
(A)
the allegation of poverty is untrue; or
(B)
the action or appeal–
(i)
(ii)
(iii)
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).
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).
Williams alleges Wells Fargo violated his rights when it sought to illegally evict him from
his residential property located at 11213 Barn Owl Drive, Austin, Texas, without first obtaining a
Writ of Possession and without allowing Williams time to appeal the eviction.1 Williams also
1
This is the second suit Williams has filed against Wells Fargo involving the Barn Owl Drive
property. See Report & Recommendation, Williams v. Wells Fargo Bank, No. 12-CV-717 LY (W.D.
Tex. September 6, 2012) (Dkt. No. 2). In his first case, Williams sought a preliminary injunction
2
complains that agents of Wells Fargo filed false second degree felony burglary of a habitation
charges against him, which caused him to be indicted and arrested, which Williams alleges “conflict
with the Plaintiff’s period of residence in the property.” Williams alleges that his due process rights
have been violated by Wells Fargo. He also alleges claims of defamation and harassment for filing
the criminal charges and requests $7 million dollars in damages. Williams seeks a preliminary
injunction enjoining Wells Fargo from evicting and/or selling Plaintiff’s alleged residential property
and has 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.
C.
Jurisdiction
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. 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. Once again, Williams’ pleadings fail to
establish any claim of legal merit.
enjoining Wells Fargo from evicting and/or selling the property located at 11213 Barn Owl Drive,
in Austin, Texas. Williams alleged that he had a property interest in the foreclosed-upon property
through adverse possession of the property. The undersigned recommended dismissal of the case,
as Williams did not meet the requirements of adverse possession under Texas law and because he
was not the owner of the property he could not enter into a contract sufficient to establish a
materialman’s lien on the property. The District Court adopted the recommendation and dismissed
that case as frivolous. Id. at Dkt. No. 5.
3
Williams alleges that he is entitled to monetary damages because Wells Fargo violated his
due process rights when it initiated the Travis County eviction action. He also alleges that Wells
Fargo violated his due process rights when it filed “false charges” against him. A due process claim
“requires some state action.” Martin v. Grehn, 2013 WL 5346707 at *4 (5th Cir. Sept. 25, 2013)
(citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972)). Wells Fargo is a corporation, not
a state actor, and it cannot violate Plaintiff’s due process rights. See, e.g., RBIII, L.P. v. City of San
Antonio, 713 F.3d 840, 844 (5th Cir. 2013). Williams’ due process claims are frivolous and fail as
a matter of law.
Williams also argues that he is entitled to monetary damages for defamation related to the
alleged “false charges” brought against him by Wells Fargo that led to his arrest and indictment for
burglary of a habitation in 2013. Williams asserts that Wells Fargo misrepresented that it owned the
property in issue, which led to the defamatory burglary of a habitation charge. Williams does not
identify any particular statements which he identifies as defamatory, merely that Wells Fargo,
through its agent, Michael Dolan, filed a charge against Williams for burglary of a habitation. A
Travis County grand jury indicted Williams on the burglary charge and he was arrested. The criminal
case remains pending.
Under Texas law, a defamation claim requires the plaintiff to prove that the defendant
“(1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with
. . . negligence, if the plaintiff was a private individual, regarding the truth of the statement.”
WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Grand Champion Film Prod.,
L.L.C. v. Cinemark USA, Inc., 257 S.W.3d 478, 481 (Tex. App.– Dallas 2008, no pet.). Despite the
fact that Plaintiff is proceeding pro se, pursuant to Federal Rule of Civil Procedure 8(a)(2), Plaintiff
4
must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.”
See Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007) (holding that a complaint may be dismissed if
a plaintiff fails to state a claim for relief). The complaint need not contain “detailed factual
allegations,” but must include sufficient facts to indicate the plausibility of the claims asserted,
raising the “right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Williams claims that Wells Fargo, through its representative Michael Dolan defamed
him by filing burglary of a habitation charges against him. Williams fails to state exactly what the
defamatory statement was, when and to whom the statement was made and the content of the
statement. The Court finds that Williams’ pleadings are insufficient under Twombly and Iqbal to
state a plausible claim of defamation against Wells Fargo. See Schulte v. Exhibits A B C D E, 2012
WL 4563726 (S.D. Tex. 2012) (unreported case).
Allowing Williams to replead will not cure this defect. In prior pleadings, Williams admitted
that his claim to legal possession of the property in issue was based on his claimed adverse
possession of the property. However, as this Court has already pointed out, to establish an adverse
possession claim under Texas law, Williams 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). Williams who, as the Court stated
in its prior Report and Recommendation, “appears to be a squatter” has admittedly occupied the
Barn Owl Drive property for less than two years, and cannot establish any cognizable claim for
adverse possession under state or federal law. Thus, any statement that Wells Fargo or its
5
representatives may have made that Williams was illegally occupying the property at issue cannot
be negligent. Wells Fargo, as the mortgagee on a defaulted mortgage,2 has an arguably legitimate
legal claim that it, and not Williams, owns the property.3 Thus the plausibility of Williams’
defamation claim is lacking, as the claim is frivolous.
With regard to Williams’ request that the Court enjoin the “illegal eviction” of his family
from the Barn Owl Drive property, the Court finds that it lacks jurisdiction to enjoin any eviction
action. Under Texas law, “[a] justice court in the precinct in which the real property is located has
jurisdiction in eviction suits.” TEX. PROP.CODE ANN. § 24.004 (West 2000). Under the doctrine
of prior exclusive jurisdiction, “when one court is exercising in rem jurisdiction over a res, a second
court will not assume in rem jurisdiction over the same res.” Marshall v. Marshall, 547 U.S. 293,
311 (2006); see also Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922) (“[W]here the jurisdiction
of the state court has first attached, the federal court is precluded from exercising its jurisdiction over
the same res to defeat or impair the state court’s jurisdiction.”). In this case, Williams states in his
pleadings that a Travis County Justice of the Peace Court has asserted its jurisdiction over the Barn
2
In his prior suit against Wells Fargo, in his Statement of Fact, Williams alleged that he
acquired the property in question through adverse possession on July 6, 2012. He admits that 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. Williams stated that he found the property vacated and
abandoned in May of 2012 and began frequenting the property shortly thereafter. He further stated
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. Plaintiff admits 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.
3
Williams relies in part on a Judgment of the Travis County Justice of the Peace Court stating
that a writ of possession would not issue until July 1, 2014. However, the alleged burglary occurred
on February 20, 2013.
6
Owl Drive property eviction suit. Thus the federal District Court cannot properly enter an Order
enjoining Williams’ eviction from the Barn Owl Drive property and the request is properly dismissed
as frivolous.
II. RECOMMENDATION
The Magistrate Judge RECOMMENDS that the District Court DISMISS Williams’
Complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 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
7
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 10th day of September, 2014.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?