West et al v. Attorney General Child Support
Filing
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REPORT AND RECOMMENDATIONS GRANTING West's 2 Motion to Proceed in forma pauperis. IT IS RECOMMENDED that the District Court DISMISS West's 1 Complaint and DENY West's 3 Motion to Appoint Counsel. Signed by Judge Mark Lane. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ETHEL WEST AND JAMES JR. WEST,
Plaintiffs,
V.
ATTORNEY
SUPPORT,
GENERAL
CHILD
Defendant.
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A-15-CV-0733-SS-ML
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
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 are Plaintiffs’ Complaint [Dkt. #1], Motion to Proceed in Forma
Pauperis [Dkt. #2], and Motion to Appoint Counsel [Dkt. #3]. Because Plaintiffs are requesting
permission to proceed in forma pauperis, the merits of their 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 Plaintiffs’ financial affidavit and determined they are
indigent and should be granted leave to proceed in forma pauperis. It is therefore ORDERED
that Plaintiffs are GRANTED in forma pauperis status and that the complaint be filed without
payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This
indigent status is granted subject to a later determination the action may be dismissed if the
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allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C.
§ 1915(e). Plaintiffs are further advised, although they have 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 Plaintiffs’ 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
This case, brought by Ethel West and James Jr. West (“West”) against the Texas
Attorney General’s Office, duplicates many of the factual allegations made by Ethel West in a
prior case, Ethel Lou West v. Attorney General Child Support, No. 1:15-CV-217-SS. Ethel and
James West assert the Attorney General’s child support division opened a child support claim
against James West in Ethel West’s maiden name without her permission. Compl. [Dkt. #1] at 1.
The Wests further allege the Attorney General’s office has “co-hursted & conspired” with
multiple federal and state agencies and private businesses, including the Social Security
Administration, the Texas Department of Motor Vehicles, the local police, and unnamed
potential private employers of Ethel and James West, to harass the Wests. The complaint alleges
the Attorney General’s Office has tampered with the Wests’ mail and social media accounts, is
“GPSing” the Wests’ phones, and is “telling jobs not to hire us telling places not to rent to us,
and getting any body to co-hurst with them.” Id.
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III.
ANALYSIS
A.
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 (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. 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; see also Neitzke v.
Williams, 490 U.S. 319, 327-28 (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 (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.
Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995). Where the state or a state agency is a
defendant, the Eleventh Amendment bars private suits in federal court unless the state has
waived, or Congress has abrogated, the state's sovereign immunity. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984); Aguilar v. Tex. Dep't of Criminal Justice, 160
F.3d 1052, 1054 (5th Cir. 1998). When Eleventh Amendment immunity applies, it deprives the
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court of subject matter jurisdiction. See, e.g., Ross v. Tex. Educ. Agency, 409 Fed. App’x. 765,
768 (5th Cir. 2011) (per curiam).
B.
Discussion
The reasons for dismissal of this claim are largely repetitive of the reasons given for
dismissal of Ethel West’s prior claim against the Attorney General’s Office, Ethel Lou West v.
Attorney General Child Support, No. 1:15-CV-217-SS. In fact, as to Ethel West, the District
Court’s Order dismissing her claims without prejudice for lack of subject matter jurisdiction is
controlling here. Michael v. United States, 616 F. App’x 146 (5th Cir. 2015) (prior dismissal
without prejudice for lack of subject matter jurisdiction has res judicata effect on subsequent
complaint alleging same facts). Ethel West’s prior case concerned the same parties and claims,
and Ethel West has presented no new arguments or facts that would change the Court’s
assessment of the Attorney General’s Eleventh Amendment immunity or the frivolousness of
Ethel West’s underlying claims. Id. (citing Ins. Corp. of Ir. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 n.9 (1982); Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 469 (5th
Cir. 2013)).
James West was not a party to the prior suit. Nevertheless, the same analysis that applied
to Ethel West’s conspiracy allegations against the Attorney General applies to these claims when
they are brought by James West.
Specifically, Eleventh Amendment immunity bars this
damages suit against the Attorney General’s Office. Pennhurst, 465 U.S. at 101. Therefore, the
undersigned RECOMMENDS dismissal of the complaint for lack of subject matter jurisdiction.
Additionally and in the alternative, the complaint must be dismissed because its
unsupported allegations that the Attorney General’s office has “co-hursed” with various public
and private actors against the Wests are facially implausible, and Plaintiffs have not plead any
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supporting facts that would “nudge [these] claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570. In fact, Plaintiffs’ allegations that the Attorney General’s Office has
prevented businesses from hiring the Wests and is tracking their cell phones, causing traffic
tickets to be issued, and otherwise inducing unrelated agencies and private actors to persecute the
Wests are not just conclusory and implausible, but “rise to the level of the irrational or the
wholly incredible.”
Denton, 504 U.S. at 33.
Therefore, the undersigned alternatively
RECOMMENDS that Plaintiffs’ claims be dismissed as frivolous.
The undersigned notes that Plaintiff Ethel West and Plaintiff James Jr. West individually
have 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. The present claim, in particular, echoes claims filed earlier this year by
Ethel Lou West and dismissed by the District Court pursuant to Section 1915(e). As noted
above, James Jr. West is not bound by the Court’s judgment against Ethel West, as he was not a
party to those prior lawsuits.
Nevertheless, given these circumstances, the undersigned
specifically warns both Ethel West and James 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). The Court warns Ethel West and
James Jr. West individually that if they continue to file meritless, vague, and impossible claims,
whether separately or jointly, the Court may impose sanctions in the future. Such sanctions may
include a broad injunction, barring Ethel West and/or James Jr. West 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).
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IV.
RECOMMENDATIONS
The Magistrate Court hereby GRANTS Plaintiffs’ Application to Proceed In Forma
Pauperis [Dkt. #2].
The undersigned RECOMMENDS the District Court dismiss Plaintiffs’ Complaint [Dkt.
#1] pursuant to 28 U.S.C. § 1915(e)(2)(B).
The undersigned FURTHER RECOMMENDS the District Court DENY all other
pending motions and requests for relief, including but not limited to Plaintiffs’ request for
appointment of counsel [Dkt. #3].
The Magistrate Court hereby WARNS Plaintiffs that multiple frivolous filings may result
in sanctions, including an injunction barring the filing of further complaints without leave of
court.
V.
OBJECTIONS
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 November 23, 2015
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE
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