Sattler v. The United States of America

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Scott Edward Sattler, II, 5 Motion to Proceed in forma pauperis filed by Scott Edward Sattler, II, Motion to Proceed in forma pauperis filed by Scott Edward Sattler, II, GRANTING 5 MOTION to Proceed in forma pauperis filed by Scott Edward Sattler, II. The undersigned FURTHER RECOMMENDS that the District Court DENY his Motion for Appointment of Counsel, and DISMISS Sattlers cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge Andrew W. Austin. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SCOTT EDWARD SATTLER, II
V.
THE UNITED STATES OF AMERICA

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A-15-CV-690-RP

ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Scott Edward Sattler, II’s (“Sattler”) First Amended Complaint

(Dkt. No. 4), in which he has embedded a Motion to Proceed In Forma Pauperis, and Motion to
Appoint Counsel, and his Application to Proceed In Forma Pauperis and Financial Affidavit in
Support (Dkt. No. 5). The District Court referred the above motions to the undersigned Magistrate
Judge for a determination pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local
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. APPLICATION TO PROCEED IN FORMA PAUPERIS
Sattler filed his initial complaint on August 10, 2015. Dkt. No. 1. It, too, contained
embedded Motions to Proceed In Forma Pauperis and to Appoint Counsel. However, as Sattler
failed to give detailed information regarding his financial status, the undersigned ordered him to file
this Court’s standard Application to Proceed In Forma Pauperis by August 28, 2015. Dkt. No. 3.
After reviewing Sattler’s Application (Dkt. No. 5), the Court finds that he is indigent. Accordingly,
the Court HEREBY GRANTS Sattler in forma pauperis status and ORDERS his Complaint be
filed without pre-payment of fees or costs or giving security therefor pursuant to 28 U.S.C.

§ 1915(a)(1). This indigent status is granted subject to a later determination that the action should
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). Sattler is further advised that although he 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. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, this Court has conducted a § 1915(e) review of the claims made in Sattler’s
Complaint and is recommending his claims be dismissed under 28 U.S.C. § 1915(e). Therefore,
service upon Defendant 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 the Defendant.
II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Because Sattler has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review his Complaint under §1915(e)(2), which provides in relevant part that
“the court shall dismiss the case at any time if the court determines that . . . the action or appeal (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 filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact,”
Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995), 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, 520–21 (1972). The court must “accept as true factual allegations in the complaint and all
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reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996);
see also Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). In deciding whether a complaint
states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally cognizable
claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial
plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. 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).
Sattler’s complaint is clear but frivolous. He asks the Court to:
(a)

Declare that every United States citizen is entitled to the equal protection of
the laws under the courts of the United States without exception,
compromise, or economic hardship to the parties of the courts or to the courts
themselves, and that the historic and continued failure of the United States to
provide this equal protection is unconstitutional.

(b)

Declare that neither poor nor disabled prospective plaintiffs of the courts of
the United States shall be required to perform any of the functions of an
attorney prior to being allowed to submit assistance or accommodation
requests, and that any such exclusionary or discriminatory policy or practice
is unconstitutional.

Dkt. No. 4 at 7. He also seeks an injunction “explicitly forbidding, and to enforce, all declarations”
and “other and further relief as the Court deems just and proper.” Id. Sattler has brought his
complaint because, he says, at some point his “constitutional rights were violated by government
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officials” and “out of retaliation, one or more crimes were committed against me by one or more
Officials.” Id. at 3. However, when Sattler attempted to file a suit regarding such violations he
“experienced involuntary recurrent memories (i.e. “flashbacks”) which acutely exacerbated existing
disabling impairment to the point of rendering Plaintiff unable to function.” Id. While Sattler has
“made excessively diligent efforts to obtain counsel for both the underlying causes of action
(resulting in the cause(s) herein) and cause(s) herein,” including seeking out Texas Rio Grande Legal
Aid, Inc., and the San Antonio Bar Association Lawyer Referral Service, no attorney has taken his
case. Id. at 6. Sattler’s essential argument is that because he has not been able to obtain legal
counsel he has been denied access to the Courts. Accordingly, Sattler “requests an order allocating
the funding required of Plaintiff’s choice of well-qualified counsel” and the declarations stated
above, presumably so that no one else will have to experience the same difficulties again.
“There is no automatic right to the appointment of counsel; and in a civil case a federal court
has considerable discretion in determining whether to appoint counsel.” Salmon v. Corpus Christi
Indep. Sch. Dist., 911 F.2d 1165, 1166 (5th Cir. 1990) (per curiam). The following three factors are
generally balanced by the courts in determining whether to appoint an attorney: (1) the party’s
financial ability to retain private counsel, (2) the party’s own efforts to secure counsel, and (3) the
merits of the case. Id. at 580, Maxwell v. Kight, 974 F. Supp. 899, 902 n.2 (E.D. Tex. 1996). Courts
have also considered a party’s ability under the circumstances of the case to present the case without
the assistance of an attorney. Poindexter v. FBI, 737 F.2d 1173, 1189 (D.C. Cir. 1984); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). In considering a motion for appointment of counsel,
the court must also remain mindful of the unfairness of imposing involuntary servitude upon a
member of the bar when the likelihood of success upon the claims appears slight. Tatum v. Cmty.

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Bank, 866 F. Supp. 988, 995 (E.D. Tex. 1994). Moreover, there are no federal funds allocated to the
prosecution or defense of civil lawsuits. For that reason, if the Court were to appoint an attorney,
counsel would have to serve entirely without compensation unless the party prevails and attorney’s
fees are awarded. The court considers all of these factors in exercising its discretion is resolving a
request for appointed counsel in a civil case.
As he is indigent, Sattler is plainly unable to retain private counsel. And, as noted, he has
stated that he sought out legal aid organizations to take his case. But while the nub of Sattler’s
complaint is that he cannot proceed with his other case—whatever it may be—without having
counsel appointed, this case before this Court is plainly frivolous. Nowhere in his complaint does
Sattler state any cognizable case, controversy, or cause of action. Federal courts have limited
jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Their
subject matter jurisdiction extends only to cases arising under the Constitution, laws, or treaties of
the United States, or controversies between parties of diverse citizenship. U.S. Const. art. iii, § 2,
28 U.S.C. §§ 1331, 1332. His first request, that the Court “declare that every United States citizen
is entitled to the equal protection of the laws” evinces no case or controversy. Indeed, it is not
disputed that every United States citizen is entitled to the equal protection of the laws. See U.S.
Const. amend. XIV. His second request—in essence that the Court appoint counsel for any
prospective indigent plaintiff—is simply frivolous. As noted, it is long settled that “there is no
automatic right to the appointment of counsel.” Salmon, supra., at 1166. Thus, rather circularly, as
Sattler has failed to state any non-frivolous claim, both his motion for the appointment of counsel,
and his complaint itself, should be dismissed.

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III. ORDERS AND RECOMMENDATIONS
In accordance with the foregoing discussion, the Court HEREBY GRANTS Sattler in forma
pauperis status. Service upon Defendants should be withheld pending the District Court’s review
of the recommendations made in this report. The undersigned FURTHER RECOMMENDS that
the District Court DENY his Motion for Appointment of Counsel, and DISMISS Sattler’s cause
of action pursuant to 28 U.S.C. § 1915(e)(2)(B).
IV. 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

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directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 10th day of September, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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