West v. The Hills Apts

Filing 8

ORDER ON REQUEST TO PROCEED IN FORMA PAUPERIS AND MOTION TO APPOINT COUNSEL AND REPORT AND RECOMMENDATIONS re 1 6 Complaint filed by Ethel Lou West, 2 GRANTS Motion to Proceed in forma pauperis filed by Ethel Lou West, 3 Motion to Appoint Counsel filed by Ethel Lou West. Signed by Judge Mark Lane. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS,
AUSTIN DIVISION
ETHEL LOU WEST,
PLAINITIFF,
V.
THE HILLS APARTMENTS, AKA
MEADOW RIDGE APARTMENTS,
DEFENDANT

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CIVIL ACTION NO. 1:15-CV-218-SS

ORDER ON REQUEST TO PROCEED IN FORMA PAUPERIS
AND MOTION TO APPOINT COUNSEL AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO: THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate 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.
Before the Court is Plaintiff’s Complaint [#1], Motion to Proceed in Forma Pauperis [#2],
Motion to Appoint Counsel [#3], and Supplement to Complaint [#6]. Because Plaintiff is
requesting permission to proceed in forma pauperis, the merits of her claims are subject to initial
review pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The undersigned has reviewed Plaintiff’s financial affidavit and determined she is
indigent and should be granted leave to proceed in forma pauperis. It is therefore ORDERED
that Plaintiff is GRANTED in forma pauperis status and that her complaint be filed without
payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This
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indigent status is granted subject to a later determination the action may 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). Plaintiff is further advised, although she 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. See Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this
complaint and is recommending dismissal of Plaintiff’s claims.

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 Defendant.
II. REVIEW OF THE MERITS OF THE CLAIMS
A. Factual Allegations
Plaintiff

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alleges she was wrongfully evicted from the Hills Apartments, after she

refused to pay rent for two months because of substandard living conditions that caused her to
fall and take painkillers and muscle relaxants for some period of time, and failure to repair other
property problems including leaks and rodent infestations. Compl. [#1] at 1. She alleges Judge
Jacquelyn Wright 2 entered a judgment allowing Plaintiff’s eviction and determining that Plaintiff
owed some amount of unpaid rent, even though Judge Wright knew the apartments were not up
to code. Id. at 1-2. Plaintiff complains that the judgment has appeared on both her and her

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Plaintiff styles this complaint “Ethel Lou West & James Jr. West v. The Hills Apartments aka Meadow Ridge
Apartments.” Compl. [#1]. Only Ethel West has signed the complaint, and as she is not an attorney, she cannot
represent James West in this action. Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir. Tex. 1998). James West has
not filed or joined Plaintiff’s complaint and is therefore not a party to this action. Id. (a pleading signed by a
nonlawyer on his own behalf and on behalf of another is effective only as to the signer.)
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The undersigned takes judicial notice that Judge Jacquelyn Wright is a Justice of the Peace in Tarrant County,
Texas, Precinct 4.

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husband’s credit reports, and that the debt reported on both of their credit reports is higher than
the amount of the judgment entered against them. Id. at 2. In support of her complaint, Plaintiff
attaches photos showing the condition of the apartment. See generally Suppl. to Compl. [#6].
Plaintiff has also attached several documents evidencing a prior federal court lawsuit she filed
against The Hills Apartments, Civil Action No. 4:14-CV-630-O, which was dismissed without
prejudice for failure to prosecute on September 3, 2014.

Plaintiff has not attached any

documentation of the state court suit before Judge Wright. 3
As noted in footnote 3, below, Plaintiff has included a variety of additional
documentation, the relevance of which is not immediately apparent, but which undisputably
contains personal data identifiers of non-parties, including minor children. Plaintiff has been
specifically informed of the need to redact such personally identifying data as names of minor
children, social security numbers of any individual, the full birth date of any individual, and
financial account numbers pertaining to any individual. See Clerk’s Letter of March 17, 2015
[#5] at 2. Because the attachments to Plaintiff’s Complaint [#1] contain voluminous amounts of
the very type of personally identifiable sensitive data Plaintiff has been instructed to redact or
refrain from filing, it is ORDERED that the Court Clerk shall restrict electronic access to this
document. Plaintiff is specifically and personally ORDERED to refrain from filing any further
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Plaintiff has also attached to her complaint (1) the citation and original petition in a child support action
concerning the two children of Ethel Ferrell (Plaintiff’s maiden name), and James West, her current husband; (2) a
June 2013 communication from the Dallas County Public Defender’s Office to James West (not a party to the
instant suit) concerning a contempt order entered against James West, in Cause No. 09-18430, In re Interest of West,
a child support action concerning a child James West had with Shanet Lashay Clark, (3) a letter of complaint from
James West addressed to the Texas Bar Judicial Board complaining about the procedure and outcome of the child
support action regarding his child with Shanet Lashay Clark and requesting removal of various offenses from his
criminal history record, (4) a letter from James West to his “Power Attorney” explaining the personal issues behind
his child support dispute with Shanet Lashay Clark, and (5) various court documents from the child support hearing
concerning the child of James West and Shanet Lashay Clark, including an Order Enforcing Child Support and
Medical Support Obligation. Plaintiff has not explained how these attachments relate to her current complaint
against The Hills Apartments, nor is their connection apparent to the undersigned. After review of these materials,
the undersigned is of the opinion they have no bearing on any claim asserted in the Complaint and do not impact the
analysis of Plaintiff’s claims for relief.

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unredacted personal data of non-parties, including names of minor children, the full social
security numbers of any individual, the full birth date of any individual, complete financial
account numbers pertaining to any individual, and personally identifiable health information of
any individual.
B. Standard of Review
A district court “shall dismiss” a case brought in forma pauperis at any time if the court
determines the action “(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 may be dismissed as frivolous if it lacks an arguable basis
in fact or law. Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir 1992) (citing Denton v.
Hernandez, 504 U.S. 25, 32, 112 S. Ct. 1728, 1733 (1992)). A claim lacks an arguable basis in
law if it is based on an indisputably meritless legal theory. Newsome v. E.E.O.C., 301 F.3d 227,
231 (5th Cir.), cert. denied, 123 S. Ct. 660 (2002); Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997). A claim lacks an arguable basis in fact if it encompasses claims which describe
“fantastic or delusional” scenarios, or which “rise to the level of the irrational or the wholly
incredible.” Denton, 504 U.S. at 33, 112 S. Ct. at 1733; see also Neitzke v. Williams, 490 U.S.
319, 327-28, 109 S. Ct. 1827, 1831 (1989). A complaint fails to state a claim upon which relief
may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007).
The court must also initially examine the basis for federal subject matter jurisdiction.
Unless otherwise provided by statute, federal district courts have jurisdiction over: (1) federal
questions arising under the Constitution, laws, or treaties of the United States; and (2) civil
actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and is
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between citizens of different states or foreign nations. 28 U.S.C. §§ 1331 & 1332. A party
seeking to invoke the jurisdiction of a federal court must prove jurisdiction is proper. Boudreau
v. United States, 53 F.3d 81, 82 (5th Cir. 1995).
C. Discussion
As a threshold matter, there is no allegation on the face of Plaintiff’s complaint that
would establish federal question or diversity jurisdiction. This is a dispute over the propriety of
Plaintiff’s eviction for failure to pay rent in the amount of $3400. Compl. [#1] at 2. 4 Plaintiff
does not allege the apartment complex that evicted her is located outside Texas, and even if it
were, the amount in controversy was not enough to establish diversity jurisdiction. 28 U.S.C. §
1332. Plaintiff has not alleged any breach of federal or constitutional law in connection with her
eviction or the court proceedings surrounding it. Therefore, the undersigned RECOMMENDS
Plaintiff’s complaint be dismissed for lack of jurisdiction.
Additionally and in the alternative, it is clear from Plaintiff’s factual allegations that her
federal complaint is an attempt to re-litigate matters that were decided (or that could have been
litigated) before Judge Jacquelyn Wright, whom Plaintiff asserts entered a final judgment against
her in a prior eviction suit between Plaintiff and The Hills Apartments, sometime during or
before August of 2014. The doctrine of res judicata bars the re-litigation of claims that either
were or should have been litigated in an earlier suit. Petro-Hunt, L.L.C. v. United States, 365
F.3d 385, 395 (5th Cir. 2004).
There are four elements of res judicata: (1) the parties are identical or in privity; (2) the
judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior
action was concluded by a final judgment on the merits; and (4) the same claim or cause of

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Plaintiff has not alleged damages in any amount relating to her alleged fall and use of painkillers and muscle
relaxants as a result of substandard conditions on the property. See generally Compl. [#1].

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action was involved in both actions. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571
(5th Cir. 2005). Under the transactional test, used to determine whether both suits involve the
same cause of action, a prior judgment’s preclusive effect extends to all rights of the plaintiff
with respect to all or any part of the transaction, or series of connected transactions, out of which
the original action arose. Petro-Hunt, 365 F.3d at 395-96. The critical issue is whether the two
actions are based on the “same nucleus of operative facts.” Davis v. Dallas Area Rapid Transit,
383 F.3d 309, 313 (5th Cir. 2004). If a party can only win the suit by convincing the court that
the prior judgment was in error, the second suit is barred. Test Masters, 428 F.3d at 571.
Plaintiff’s own statements establish that this lawsuit involves the same parties as her state
court suit before Judge Wright. Compl. [#1] at 1-2. Plaintiff does not challenge that Judge
Wright’s court was a court of competent jurisdiction. Plaintiff herself acknowledges Judge
Wright entered judgment in the prior action. Id. at 2. In both the state court suit and the instant
suit, Plaintiff makes the same basic claim: she challenges the validity of her eviction and her
obligation to pay rent in light of the landlord’s failure to maintain decent living standards on the
property. Id. at 1-2. Thus, even if Plaintiff could establish federal subject matter jurisdiction
over this dispute, she could win only if this Court acted to overturn the prior final judgment. Test
Masters, 428 F.3d at 571. This is exactly the type of collateral attack foreclosed by the doctrine
of res judicata. Id. Therefore, in the alternative, the undersigned RECOMMENDS Plaintiff’s
claim be dismissed because it fails to state a claim for which relief can be granted based on the
doctrine of res judicata. 5
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Finally, even if the hurdles of subject matter jurisdiction and res judicata could be overcome, the court notes
that venue for this action is likely not proper in the Western District of Texas. 28 U.S.C. § 1391. While Plaintiff’s
Complaint does not specify the location of the defendant apartment complex, the fact that Plaintiff alleges the
eviction suit took place before Judge Jacquelyn Wright, a Justice of the Peace in Tarrant County, Texas, strongly
suggests the defendant is located in Tarrant County and the events giving rise to Plaintiff’s claims occurred in
Tarrant County—a county which is served by the Northern District of Texas, not the Western District of Texas. See
id.

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The undersigned notes that Plaintiff Ethel Lou West has multiple claims pending before
this Court, each of which the undersigned has recommended be dismissed for lack of
jurisdiction, failure to state a cognizable claim for relief, and/or frivolousness. Ms. West has
previously had multiple claims dismissed before the Northern District of Texas, where she is
currently domiciled, for failure to prosecute and as frivolous (including a prior claim against the
Hills Apartment Complex that was dismissed without prejudice for failure to prosecute). Under
these circumstances, the undersigned specifically warns Ms. West that sanctions may become
appropriate when a pro se litigant develops a history of submitting multiple frivolous claims.
FED. R. CIV. P. 11; Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993).
Based on Ms. West’s current conduct in the Western District and her past litigation
conduct in the Northern District of Texas, the Court warns Ms. West that if she continues to file
meritless, vague, and impossible claims, the Court may impose sanctions in the future. Such
sanctions may include a broad injunction, barring her from filing any future actions in the
Western District of Texas without leave of court. See Filipas v. Lemons, 835 F.2d 1145, 1146
(6th Cir. 1987) (order requiring leave of court before plaintiffs file any further complaints is
proper method for handling complaints of prolific litigators).
III. RECOMMENDATION
The Magistrate Court hereby GRANTS Plaintiff’s Application to Proceed In Forma
Pauperis.
Because voluminous attachments to Plaintiff’s Complaint [#1] contain personal data
identifiers of nonparties, IT IS ORDERED that the Clerk of this Court shall restrict electronic
access to this document.

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Plaintiff is specifically and personally ORDERED to refrain from filing any further
unredacted personal data of non-parties, including names of minor children, the full social
security numbers of any individual, the full birth date of any individual, complete financial
account numbers pertaining to any individual, and personally identifiable health information of
any individual.
The undersigned RECOMMENDS the District Court dismiss Plaintiff’s cause of action
pursuant to 28 U.S.C. § 1915(e)(2)(B) and FURTHER RECOMMENDS that the District Court
DENY all other pending motions and requests for relief.
IV. WARNING
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 Battles 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 Services Automobile Ass’n, 79 F.3d 1415 (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
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ORDERED to mail such party a copy of this Report and Recommendation by certified mail,
return receipt requested.
SIGNED on April 14, 2015.
____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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