Trejo v. Popper

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS 5 . FURTHER ORDERED that Plaintiff Carmelo Trejo's Complaint # 1 is DISMISSED WTTHOUT PREJUDICE. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

CARMELO TREJO #1939665,
Plaintiff,
Case No. A-14-CA-1127-SS

-vs-

CHARLES POPPER,

Defendant.

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Plaintiff Carmelo Trejo's Complaint [#1] and the Report and Recommendation (R&R)

of the United States Magistrate Judge [#5], to which Trejo has not filed objections. Having reviewed
the documents, the relevant law, and the file as a whole, the Court now enters the following opinion
and orders ADOPTING the R&R and DISMISSiNG Trejo's claims.

All matters in this case were referred to United States Magistrate Judge Mark Lane for report
and recommendation pursuant to 28 U.S.C. § 63 6(b) and Rule 1(f) of Appendix C ofthe 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. Trejo is entitled to de novo review of the
portions of the Magistrate Judge's report to which he filed specific objections.
§

636(b)(1). All other review is for plain error.

Starns

v.

Andrews, 524

28 U.S.C.

F.3d 612, 617 (5th Cir.

2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate

Judge's recommendation.

Background
At the time he filed his complaint pursuant to 42 U.S.C.

§

1983, Trejo was confined in the

Texas Department of criminal Justice, Correctional Institutions Division. Trejo sues charles

Popper, his previously retained criminal attorney, and seeks a refund of $1,500. Trejo explains he

paid Popper to represent him in a misdemeanor driving while intoxicated case. Popper, however,
failed to appear on his behalf.

Analysis
I.

Legal Standard
An informapauperis proceeding may be dismissed sua sponte under 28 U.S.C.

§

1915(e)(2)

if "the action or appeal (1) 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 dismissal for frivolousness may occur at anytime, 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).
Pro se complaints are liberally construed in favor ofthe plaintiff Haines v. Kerner, 404 U.S.

519, 520-21 (1972). The allegations in the complaint, "particularly apro se complaint, must be

accepted as true, along with any reasonable inferences that may be drawn therefrom." Watts

v.

Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). The petitioner's pro se status, however, 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

MbankHouston NA., 808 F.2d 358, 359 (5th Cir. 1986).

-2-

v.

II.

State Actor under § 1983
The provisions of 42 U.S.C.

§

1983 state every person who acts under color of state law to

deprive another of constitutional rights shall be liable to the injured party. A civil rights plaintiff
must show an abuse of government power that rises to a constitutional level in order to state a
cognizable claim. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d 695,
697 (5th Cir. 1980). Section 1983 suits may be instituted to sue a state employee, or state entity,

using or abusing power that is possessed by virtue of state law to violate a person's constitutional
rights. Monroe v. Pape, 365 U.S. 167, 184 (1961); Brown v. Miller, 631 F.2d 408, 410-11(5th Cir.
1980). A private person may be amenable to suit only when the person is a willful participant in

joint action with the State or its agents. Dennis v.Sparks, 449 U.S. 24, 27 (1980).
As the Magistrate Judge explained, Trejo's claim against Popper cannot be brought under
§1983 because retained counsel does not act under color of state law. Pete v. Metcalfe, 8 F.3d 214,

217 (5th Cir. 1993); Russell

v.

Millsap, 781 F.2d 381, 383 (5th Cir. 1985). Accordingly, Trejo's

claims brought against Defendant Popper are frivolous and must be dismissed.1

III.

Warnings
The Court also adopts the Magistrate Judge's recommendation warning Trejo filing or

pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to
§

1915(f); (b) the imposition of significant monetary sanctions pursuant to Federal Rule of Civil

Procedure 11; (c) the imposition of an order barring Trejo 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.

110

the extent Trejo alleges Popper breached a contract, such claim must be filed in state court.

-3-

Trejo is further warned 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 which
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) sixty 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 Defendant 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

§

498.0045.
Trejo is finally warned if he 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 informapauperis unless he is
in imminent danger of serious physical injury. See 28 U.S.C.

§

1915(g).

Conclusion
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge Mark

Lane [#5] is ADOPTED;
IT IS FURTHER ORDERED that Plaintiff Carmelo Trejo's Complaint [#1] is

DISMISSED WTTHOUT PREJUDICE;
IT IS FURTHER ORDERED that the Clerk ofthe Court send a copy of this order and

judgment to the Texas Department of Criminal Justice, Office of the General Counsel;
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IT IS FINALLY ORDERED that the Clerk of the Court send a copy of this order and

judgment to the Pro Se Clerk for the United States District Court for the Eastern District of
Texas.
SIGNED this the .2 r day of January 2015.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

1127 1983 ordjtw.frm

-5-