Payne v. Texas Department of Assistive and Rehabilitative Services

Filing 12

REPORT AND RECOMMENDATIONS 3 Complaint filed by Don A. Payne. Recommended that that Payne's claims for injunctive relief against the TDARS employees for failure to state a claim should be dismissed. Also recommended that sanctions be imposed on Payne under Rule 11 for filing a case that lacks an arguable basis in law or fact. Signed by Judge Nancy Stein Nowak. (Served by certified mail or electronic transmittal)(tm, )

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
Donald A. Payne,
Plaintiff,
v.
William Glenn, Ruben Garcia,
Lee Johnson & Nelda Zuniga,
Defendants.

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CIVIL ACTION NO.
SA-11-CV-0336 FB (NN)

REPORT AND RECOMMENDATION
TO:

Honorable Fred Biery
Chief United States District Judge
This report and recommendation recommends dismissing this case under 28

U.S.C. § 1915(e). Plaintiff was granted permission to proceed in forma pauperis (IFP)
subject to a later determination that the action is frivolous under section 1915(e).1 I
screened the case under section 1915(e) and determined it fails to state a claim upon
which relief may be granted.2 I also determined that sanctions are appropriate under
Rule 11.3

1

Docket entry # 2.

2

Fed. R. Civ. P. 12(b)(6).

3

Fed. R. Civ. P. 11.

Dismissal under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915, the court must screen
an IFP complaint and dismiss the complaint if the court determines the complaint is
frivolous or malicious or fails to state a claim on which relief may be granted.4 This
provision permits the court to dismiss those claims whose factual contentions are clearly
baseless.5 Dismissal of a claim as frivolous is appropriate where the claim lacks an
arguable basis either in law or in fact.6 Similarly, the “district court may dismiss an
action on its own motion under Rule 12(b)(6) [of the Federal Rules of Civil Procedure]
‘as long as the procedure employed is fair.’”7 Analyzing the merits of a plaintiff’s claim
in a report and recommendation and giving the plaintiff an opportunity to object to the
recommendation is a fair process for dismissing a case.
Background of the case. Plaintiff Don A. Payne is a frequent litigator. Recently,
Judge Rodriguez warned Payne about the consequences of filing frivolous lawsuits.8

4

28 U.S.C. § 1915(e)(2)(B).

5

See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995).

6

See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997).
7

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (citation omitted). See Carroll
v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006) (explaining that the “district court
may dismiss a complaint on its own for failure to state a claim” so long as a fair
procedure is employed).
8

See Cause No. 10-CV-740-XR, docket entry # 8, p. 2 (warning Payne that further
violations of Rule 11 may result in sanctions).
2

Instead of heeding the warning, Payne filed this lawsuit in the Austin Division. He later
asserted that he felt any decision made by this judicial division would be partial.9
As defendants, Payne named the Texas Department of Assistive and
Rehabilitative Services (TDARS) and four TDARS employees: William Glenn, Ruben
Garcia, Lee Johnson and Nelda Zuniga (together, the TDARS employees).10 Payne cited
numerous legal authorities and complained about the termination of vocational
rehabilitative services on December 17, 2010. Payne complained that he was not
notified that his case was being closed and challenged the termination of services.
After reviewing Payne’s motion to proceed IFP, Magistrate Judge Pittman
recommended dismissing — as barred by the Eleventh Amendment — all claims
against TDARS and the claims for money damages against the employees.11 Because
the case was filed in the wrong division, Judge Pittman recommended transferring
Payne’s claim for injunctive relief against the TDARS employees to this division.12

9

Docket entry # 7, p. 2 (stating, “I truly feel any decision made by the United
States District Court for the Western District of Texas, San Antonio Division, will be
partial”).
10

Docket entry # 6.

11

Docket entry # 2.

12

Id.
3

Judge Yeakel accepted the recommendation and transferred the claim for injunctive
relief.13
Because it appeared Payne’s claim for injunctive relief failed to state a claim, I
issued a show cause order and directed Payne to address the matters discussed in this
report.14 Payne responded, but his response did not address the issues in the show
cause order.15 Instead, he addressed qualified immunity — a matter not implicated by
the deficiencies discussed below.
Payne’s claim for injunctive relief. As injunctive relief, Payne sought the
“promulgation [of] safeguards and policies…to adequately train and supervise
employees in order to safeguard the rights of U.S. citizens and persons with mental
disabilities subject to assistive and rehabilitative service.”16 To the extent, Payne sought
relief on behalf of others, Payne lacks standing. To the extent, Payne seeks the
promulgation of safeguards and policies for the provision of assistive and rehabilitative
services from the TDARS employees, TDARS is “ the principal authority in the state on

13

Docket entry # 6.

14

Docket entry # 10.

15

Docket entry # 11.

16

Docket entry # 3, p. 36.
4

matters relating to rehabilitation of individuals with disabilities,”17 not the TDARS
employees. Payne failed to state a claim against the TDARS employees because the
authority to promulgate safeguards and policies lies with TDARS.
Payne’s challenge about the termination of benefits. To the extent Payne
sought review of the termination of vocational rehabilitative services from TDARS or
the TDARS employees, Payne failed to state a claim upon which relief may be granted.
Federal law provides for review of determinations affecting the provision of vocational
rehabilitation services to applicants like Payne.18 The applicable procedures provide for
a due process hearing before an impartial hearing officer and mediation.19 The
procedures also provide for a civil action for review of a final decision by a hearing
officer. Payne indicated in his complaint that he had not received a final decision when
he filed this lawsuit.20
Because Payne stated in his “motion to enter” that an impartial hearing officer
had since made a determination in his favor,21 I directed Payne to submit a copy of the

17

Tex Hum. Res. Code Ann. § 111.052 (West 2001); 40 Tex. Admin. Code §

101.103.
18

29 U.S.C. § 722.

19

40 Tex. Admin. Code §§ 101-7051 - 101.7073.

20

Docket entry # 3, p. 28.

21

Docket entry # 7.
5

hearing officer’s decision. Payne provided a copy of the decision.22 In the decision, the
hearing officer found no evidence of the denial of due process in the termination of
Payne’s services and no evidence that TDARS acted prejudicially toward Payne. The
hearing officer, however, determined that TDARS terminated Payne’s services without
conducting the required consultation and thus violated Payne’s right to have input into
the decision to terminate services. Accordingly, the hearing officer found for Payne and
remanded Payne’s case to a TDARS field office to determine whether the cause may be
properly closed after consultation with Payne. This result constitutes a decision in
Payne’s favor.
Obtaining a favorable decision indicates the relief Payne seeks is moot because
his case was returned to a TDARS field office. A moot claim fails to state a claim upon
which relief may be granted because no controversy exists for the court to adjudicate.
Obtaining a favorable decision also indicates Payne filed this case prematurely because
he filed his case before TDARS made a final reviewable decision; that is, Payne sought
review of a non-reviewable determination. A claim seeking a review of a nonreviewable determination fails to state a claim upon which relief may be granted.

22

Docket entry # 11, attached final decision before Dep’t of Assistive &
Rehabilitative Services impartial hearing officer.
6

Recommendation. I recommend dismissing Payne’s claims for injunctive relief
against the TDARS employees for failure to state a claim. If the court accepts this
recommendation, it can enter a final judgment in this case.
I also recommend sanctioning Payne under Rule 11 for filing a case that lacks an
arguable basis in law or fact. This case lacks an arguable basis in law and fact for the
reasons discussed above. “A sanction imposed under [Rule 11] must be limited to what
suffices to deter repetition of the conduct or comparable conduct by others similarly
situated.”23
Proceeding IFP has fueled Payne’s litigation history. Payne’s litigation history is
detailed in my report and recommendation in Cause No. 10-CV-740-XR.24 Payne may
be deterred from filing frivolous lawsuits if he is required to pay the filing fee. To that
end, I recommend requiring payment of the filing fee for any future lawsuit. As part of
a sanction, I recommend directing the clerk as follows:
The clerk shall not file any new civil action submitted by Payne unless
Payne’s complaint is accompanied by the civil filing fee or unless directed
to do so by a district judge or a magistrate judge of this district. This order
shall apply to any action that is filed in this district or filed in another
district and transferred to this district. The clerk shall advise all district
divisions about this order.

23

Fed. R. Civ. P. 11 (c)(4).

24

Cause No. 10-CV-740-XR, docket entry # 4, pp. 5-7.
7

This sanction should be sufficient to deter Payne from abusing the judicial system by
litigating meritless claims, but will not preclude Payne’s access to the courts because
Payne may either pay the filing fee or seek leave of the court to file a complaint.
Instructions for Service and Notice of Right to Object/Appeal. The United
States District Clerk shall serve a copy of this report and recommendation on all parties
by either (1) electronic transmittal to all parties represented by attorneys registered as a
“filing user” with the clerk of court, or (2) by mailing a copy to those not registered by
certified mail, return receipt requested. Written objections to this report and
recommendation must be filed within 14 days after being served with a copy of same,
unless this time period is modified by the district court.25 Such party shall file the
objections with the clerk of the court, and serve the objections on all other parties and
the magistrate judge. A party filing objections must specifically identify those findings,
conclusions or recommendations to which objections are being made and the basis for
such objections; the district court need not consider frivolous, conclusive or general
objections. A party’s failure to file written objections to the proposed findings,
conclusions and recommendations contained in this report shall bar the party from a de
novo determination by the district court.26 Additionally, failure to file timely written

25

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

26

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, 200 F.3d 335,
340 (5th Cir. 2000).
8

objections to the proposed findings, conclusions and recommendations contained in this
report and recommendation shall bar the aggrieved party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court.27
SIGNED on July 1, 2011.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

27

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
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