West v. Hud Housing of Tx + MO

Filing 8

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Ethel L West, GRANTING 2 Motion to Proceed in forma pauperis filed by Ethel L West, RESTRICTING ELECTRONIC ACCESS TO 1 Complaint filed by Ethel L West. Signed by Judge Mark Lane. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS,
AUSTIN DIVISION
ETHEL LOU WEST
PLAINITIFF,
V.
HUD HOUSING OF TEXAS AND
MISSOURI,
DEFENDANTS

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CIVIL ACTION NO. 1:15-CV-220-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 Ethel Lou West 1 alleges “HUD Housing of TX and MO co-hursted with
Attorney General Child Support by lieing[sic] to us so they can refuse us from getting housing.”
Complaint [#1] at 1. Plaintiff specifically alleges HUD Housing in Fort Worth, Texas falsely
stated that her husband, James West, had failed a criminal background check, and that a HUDsponsored apartment complex, Windriver, kept Plaintiff’s $250 deposit and used it to throw a
party. Id. Plaintiff alleges HUD Housing in Independence, Missouri lied to Plaintiffs by telling
them their name was on the top of the waiting list but still allowing “any location to turn us
away, because they make up lies so they don’t have to help us.” Id.

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Plaintiff styles this complaint “Ethel Lou West + James Jr. West v. HUD Housing of TX + MO.” 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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In support of her claims, Plaintiff has attached a partial news article, un-dated, that
appears to be from “fwweekly.com,” and that features the Wind River Apartments in Fort Worth
as an example of subsidized housing located in an area where crime is a problem. Suppl. to
Compl. [#6] at Untitled News Article, p. 2. She also attaches a copy of a $200 check made out to
Wind River and labeled “Deposit.” Id., Check Copy. Finally, she includes what appear to
excerpts from Wind River’s Rental Criteria.

Id., Wind River Apartments Rental Criteria.

Plaintiff has not included documentation of any application or complaint made directly to HUD,
either in Texas or Missouri. 2
As noted in footnote 2, 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
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Plaintiff has also attached to her complaint (1) several apparently unrelated documents concerning a prior
lawsuit 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, (2) 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; (3) 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, (4) 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, (5) a letter from James West to his “Power Attorney” explaining the personal issues behind his child
support dispute with Shanet Lashay Clark, and (6) 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 complaint against
HUD, 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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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
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. A
party seeking to invoke the jurisdiction of a federal court must prove jurisdiction is proper.
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Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995). “If a statute requires a plaintiff to
exhaust administrative remedies, [her] failure to do so deprives this court of subject-matter
jurisdiction.” Lowe v. Colvin, 582 Fed. App’x 323, 324 (5th Cir. 2014) (unpublished) (citing
Taylor v. U.S. Treas. Dep’t, 127 F.3d 470, 475 (5th Cir 1997) (per curiam)).
C. Discussion
HUD—the Department of Housing and Urban Development—is a federal agency.
Plaintiff’s claims against HUD amount to tort claims of negligence, conversion, and
misrepresentation. Compl. [#1] at 1. These allegations are properly construed as complaints
against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. See Lewis
v. United States HUD, 2013 U.S. Dist. LEXIS 76263, *2 (allegations that HUD negligently
deleted housing application and negligently handled complaint were properly brought as FTCA
claims). 3
By statute, the FTCA waives the United States’ immunity from suit only after a plaintiff
exhausts her administrative remedies with the agency whose alleged negligence or wrongful act
caused her damages. 28 U.S.C. § 2675(a). Presentment of a claim to the appropriate federal
agency is a jurisdictional prerequisite. Lewis, 2013 U.S. Dist. LEXIS 76263 at *4 (citing Life
Partners Inc., 650 F.3d at 1030).
Plaintiff makes no factual allegation and attaches no documentation that would suggest
she made any attempt to exhaust administrative remedies with HUD, whether in Missouri or
Texas. See generally, Compl. [#1]. Plaintiff’s failure to comply with statutory exhaustion

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The Court notes, however, that Plaintiff’s claims for misrepresentation are not cognizable under the FTCA and
should therefore be dismissed for failure to state a claim on which relief can be granted, irrespective of the
jurisdictional analysis presented in Part II.C, above. 28 U.S.C. § 2680(h); Life Partners, Inc. v. United States, 650
F.3d 1026, 1030 (5th Cir. 2011)

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requirements deprives this Court of subject matter jurisdiction. Lowe, 582 Fed. App’x at 324.
Accordingly, the undersigned RECOMMENDS that Plaintiff’s Complaint against HUD of Texas
and Missouri be dismissed for lack of subject matter jurisdiction.
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. 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.

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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.
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

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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
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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