West et al v. Everest University South

Filing 5

REPORT AND RECOMMENDATIONS GRANTING WESTS' 2 Motion to Proceed in forma pauperis. IT IS RECOMMENDED that the District Court DISMISS Wests' 1 Complaint and DENY Wests' 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.
EVEREST UNIVERSITY SOUTH,
Defendant.

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A-15-CV-0863-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 Everest University
South (“Everest”), alleges Everest “co-hursted” with the Attorney General’s office and the Texas
Department of Health and Human Services (DHHS) by “giving me a run around about my
financial aid.” Complaint [Dkt. #1] at 1. It is not clear from the complaint which of the two
Plaintiffs seeks financial aid from Everest. In any event, Plaintiffs jointly assert Everest has
wrongly charged them $10,403 as a result of using incorrect information to calculate financial
aid since April of 2015. Id.
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

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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). Typically, federal jurisdiction is
predicated on the existence of a question of federal law in the pleadings, 28 U.S.C. § 1331, or on
the parties’ diversity of citizenship, 28 U.S.C. § 1332. 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
court of subject matter jurisdiction. See, e.g., Ross v. Tex. Educ. Agency, 409 Fed. App’x. 765,
768 (5th Cir. 2011) (per curiam).

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B.

Discussion

This complaint must be dismissed because the Court lacks subject matter jurisdiction.
Diversity jurisdiction is not plead, nor is it apparent on the face of the complaint. 28 U.S.C. §
1332. Specifically, the Court notes the Wests have plead an amount in controversy of $10,403—
well short of the $75,000 amount in controversy necessary to support diversity jurisdiction. Id.
The complaint does not allege any basis for federal question jurisdiction. 28 U.S.C. §
1331. Everest is a private actor, and while the dispute over the correct amount of tuition to
charge the Wests may implicate federal forms (such as the FAFSA application), it does not
implicate any private cause of action under federal law. Id. To the extent the Wests are
attempting to sue the Attorney General’s office or DHHS, or to imply that Everest is somehow
acting in conjunction with the Attorney General’s office and DHHS as a quasi-state actor,
Eleventh Amendment immunity applies to bar this damages suit.

Pennhurst State Sch. v.

Halderman, 465 U.S. 89, 101 (1984). 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 Everest’s financial aid calculations are part of a conspiracy with
government agencies against the Wests are facially implausible, and Plaintiffs have not plead any
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 and
DHHS have intentionally conspired with Everest to overcharge them 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.
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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. Therefore, 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).
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 that 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].

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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
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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