Martin v. Barrett, Daffin, Frappier, Turner & Engel, LLP et al

Filing 8

ORDER ADOPTING Magistrate's 6 Report and Recommendations. ORDER Granting Defendant Barrett Daffin Frappier Turner & Engle, LLP's 5 Motion to Dismiss. IT IS FINALLY ORDERED that Martin's 1 Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 19 15(e). Signed by Judge Sam Sparks. (klw)

LE0

I
IN THE UNITED STATES DISTRICT COURTF
FOR THE WESTERN DISTRICT OF
AUG 19 PM 2:28
AUSTIN DIVISION

T9

CLER.:.

OURT

1EX;

ROBERT MARTIN,

Plaintiff,
-vs-

Case No. A-15-CA-290-SS

BARRETT DAFFIN FRAPPIER TURNER &
ENGEL, LLP and MELISSA GALVAN,
Defendants.

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendant Barrett, Daffin, Frappier, Turner & Engle, LLP's Rule 12(b)(6) Motion to
Dismiss [#5] and the Report and Recommendation of the United States Magistrate Judge [#6]. No

objections have been filed. Having considered the documents, the file as a whole, and the governing
law, the Court now enters the following opinion and orders.

All matters in this case were referred to United States Magistrate Judge Mark Lane for report

and recommendation 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. Having granted Martin leave to proceed

informapauperis (IFP), the Magistrate Judge duly performed a review of his claims pursuant to 28
U.S.C.

§

1915(e) and found they should be dismissed. Martin 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.

28 U.S.C.

Andrews, 524 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.
Plaintiff Robert Martin, actingpro Se, brings claims under the Racketeering and Influenced
Corrupt Organization Act (RICO) and for fraud against Defendants Barrett Daffin Frappier Turner
& Engle, LLP (BDFTE) and Melissa Galvan. Martin's claims appear to arise out of a foreclosure

of real property, although Martin fails to identify the property in question in his complaint. In fact,
the complaint is little more than a recitation of legal standards related to RICO and citations to a

handful of United States Treasury regulations.

See

Compl. [#1] at 1-3. Melissa Galvan' s identity

is not clear; she is alleged only to have "aid[ed] and abett[ed]" BDFTE "in the theft of Martin's

home." Id. at 3. As for BDFTE, Martin appears to allege that BDFTE, the American Bar
Association, and the State Bar of Texas have together conducted some unspecified pattern of
racketeering activity leading to foreclosure on Martin's home.

See

id.

at

1.

Additionally, Martin

alleges BDFTE "committed two frauds by advancing two writings which they signed which they

knew were false with the intent that Martin and others rely on the writings to injure [Martin] by
depriving [Martin] of property." Id. at 2. Martin does not identify these allegedly false "writings."

Martin seeks "at least" $500,000 in damages on his claims. Id. at 4.
As Martin is proceeding IFP, his complaint may be dismissed at any time if it 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)(ii); Green v. McKaskle,

788 F.2d 1116, 1119 (5th Cir. 1986). Pro se complaints are liberally construed. Haines v. Kerner,

404 U.S. 519 (1972). However, pro se status does not afford the complainant "an impenetrable
shield, for one acting pro se has no license to harass others, clog the judicial machinery with
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meritless litigation and abuse already overloaded court dockets." Farguson v. MBankHous., NA.,
808 F.2d 358, 359 (5th Cir. 1986).

As explained by the Magistrate Judge and illustrated above, Martin has clearly failed to state
a claim upon which relief may be granted. Martin fails to plead any specific factual allegations

concerning the purported RICO conspiracy among BDFTE, the American Bar Association, and the
State Bar of Texas, or the fraud he claims occurred. Further, although Melissa Galvin was not a

party to the motion to dismiss, the Court agrees dismissal of all claims against Galvin for failure to
state a claim is likewise appropriate, as Martin has pled no specific factual allegations concerning

Galvin's involvement in any fraudulent scheme or RICO activity.

Conclusion
The Court cautions Martin filing or pursuing any further frivolous lawsuits, similar to the one

dismissed here, may result in serious sanctions or penalties, specifically: (1) the imposition of court

costs pursuant to

§

1915(f); (2) the imposition of significant monetary sanctions pursuant to FED. R.

Civ. P. 11; (3) the imposition of an order barring him 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 (4) the imposition of an order imposing some combination of these sanctions.
Accordingly:
IT IS ORDERED that the Report and Recommendation of the United States

Magistrate Judge [#6] is ACCEPTED;
IT IS FURTHER ORDERED that Defendant Barrett Daffin Frappier Turner & Engle,

LLP's Rule 12(b)(6) Motion to Dismiss [#5] is GRANTED; and

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IT IS FINALLY ORDERED that Plaintiff Robert Martin's Complaint [#1] is

DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C.
SIGNED this the

§ 19 15(e).

day of August 2015.

SAM'1r

UNITED STATES DISTRICT JUDGE

290

rr

ok ba.frm

-4-