Silver v. City of San Antonio et al
Filing
5
MEMORANDUM OPINION AND ORDER. The Court DENIES the Request and Order to File New Litigation by Vexatious Litigant in Western District Court (ECF No. 1); DENIES the Motion on Case Status (ECF No. 2); DENIES Plaintiffs Motion to Amend Case Caption ( ECF No. 3); and DENIES Plaintiffs Motion for Action on this Case (ECF No. 4). The latter three motions are unnecessary, and Silver has not carried his burden to persuade the Court that he should be permitted to pursue the complaint attached to his motion for leave. ( Show Cause Response due by 7/21/2020). Signed by Judge Jason K. Pulliam. (bc)
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 1 of 20
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FREDERICK OMOYUMA SILVER,
Plaintiff,
v.
Case No. SA-19-MC-1490-JKP
CITY OF SAN ANTONIO,
CHRISTOPHER DARRYL CUMMINGS,
and JOHN DOE,1
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has under consideration a Request and Order to File New Litigation by Vexatious Litigant in Western District Court (ECF No. 1); a Motion on Case Status (ECF No. 2); Plaintiff’s Motion to Amend Case Caption (ECF No. 3); and Plaintiff’s Motion for Action on this Case
(ECF No. 4). The second and fourth motions essentially seek to compel court action on the first
filing. The third motion seeks to list Christopher Darryl Cummings (“Officer Cummings”) as the
first defendant. The Court denies each of the three latter motions as unnecessary.
In his two-page request, which the Court liberally construes as a motion, putative Plaintiff
Frederick Omoyuma Silver (“Silver”) explains that the Court previously deemed him a vexatious
litigant and he thus must obtain judicial approval before filing new litigation without representation from an attorney. Request at 1. He has attached a copy of the complaint that he seeks to file
and asserts that it has merit because Officer Cummings exceeded his authority and jurisdiction and
acted in concert with the City of San Antonio. Id. He also lists an unidentified officer as a “John
Although the caption of the proposed Original Complaint confusingly identifies “City of San Antonio, Bexar Texas,”
the body of the complaint clarifies that Silver is not attempting to sue Bexar County separately from the City. Furthermore, while Silver uses “Cummings Christopher Darryl” he provides documents that clearly show that defendant as
“Christopher Darryl Cummings.” Finally, the proposed complaint includes a “John Doe” defendant that is not listed
on the docket of this action.
1
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 2 of 20
Doe” defendant. Orig. Compl. ¶ 3.
Because Silver cannot file his proposed civil action without leave of court, it is his burden
to persuade the Court that it should allow his proposed filing to commence a new civil action. As
detailed more in depth later, to carry that burden, a sanctioned litigant must generally show that
the claims sought to be asserted have sufficient merit; that each defendant is properly included in
the litigation; that the proposed filing is both procedurally and legally sound; that there is no obvious defense to asserted claims; that the claims are not brought for any improper purpose, such
as harassment; and that the motion for leave as well as the proposed pleading complies with all
relevant requirements set out in prior sanctions. Whether to grant or deny the requested leave is a
matter within the Court’s sound discretion. Upon review of the motion for leave, the proposed
complaint, and attachments thereto, the Court exercises its discretion to deny the requested leave
for the reasons stated herein.
I. SANCTION AND PERTINANT LITIGATION HISTORY
On April 18, 2019, the Honorable District Judge Xavier Rodriguez of this Court accepted
a recommendation that the Court dismiss the then pending action filed by Silver as frivolous, deem
Silver a vexatious litigant, and impose sanctions. See Silver v. Bemporad, No. SA-19-CV-0284XR, 2019 WL 1724047, at *1-4 (W.D. Tex. Apr. 18, 2019), appeal dismissed, No. 19-50339 (5th
Cir. July 15, 2019). Before recommending that Silver be sanctioned as a vexatious litigant, the
Magistrate Judge recited Silver’s litigation history, which at that time included multiple cases
“filed in the past few years, all of which have been dismissed at the pleadings stage.” Silver v.
Bemporad, No. 5-19-CV-00284-XR-RBF, 2019 WL 1546963, at *4 (W.D. Tex. Apr. 9, 2019)
(recommendation of Mag. J.) (citing Silver v. Towner, No. 5-17-CV-1135-DAE (W.D. Tex. filed
Nov. 7, 2017); Silver v. Salazar, No. 5-18-CV-1-XR (W.D. Tex. filed Nov. 2, 2018); Silver v.
Perez, No. 5-18-CV-1307-FB (W.D. Tex. filed Dec. 13, 2018); Silver v. Toyota Motor Mfg. Tex.
2
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 3 of 20
Inc., No. 5-18-CV-171-FB (W.D. Tex. filed Feb. 20, 2018); Silver v. SAPD, No. 5-19-CV-7-XR
(W.D. filed Jan. 4, 2019)) accepted by 2019 WL 1724047 (W.D. Tex. Apr. 18, 2019)).
Based on “a review of the totality of Silver’s filings in this case—as well as in seven other
cases,” the Magistrate Judge found “that Silver is a vexatious litigant whose frivolous filings pose
an unwarranted burden on the Court.” Id. at *1. The Magistrate Judge thus recommended that “the
District Court ENJOIN Silver from filing further lawsuits in this judicial district without prior
leave from a district judge of this district” and that he “be WARNED that further frivolous filings
in any new or pending case may result in the imposition of monetary sanctions.” Id. The District
Court accepted the recommendations and issued the following orders:
Plaintiff is further ENJOINED from filing any civil lawsuit in the San Antonio
Division of the United States District Court for the Western District of Texas
unless he first seeks leave and obtains permission from a district judge in this
district. Before filing any new lawsuit in this district and division, Silver must file
a motion for leave to file the action, along with a proposed complaint, which motion
shall be randomly assigned to a Judge in the division for disposition. The Clerk is
instructed to not accept any new lawsuit filed by Silver in this division unless and
until such motion is filed and granted.
Because Silver has other pending litigation in this Court and may have future cases
removed to this Court, he is also WARNED that further frivolous filings or motions in those pending cases or any future filed or removed case may also result
in the imposition of monetary sanctions.
Silver v. Bemporad, No. SA-19-CV-00284-XR, 2019 WL 1724047, at *4 (W.D. Tex. Apr. 18,
2019). Contrary to Silver’s interpretation, nothing within the sanction order limits the prefiling
injunction to future cases Silver seeks to pursue without counsel. However, the presence of counsel
for Silver would likely impact the review of any motion for leave to proceed with the new proposed
litigation.
A. Subsequent District Court Civil Actions
After the imposition of sanctions, the Honorable District Judge David A. Ezra recognized
Silver as “a vexatious litigant who continuously engages in frivolous motions practice in this
3
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 4 of 20
Court.” Silver v. Bexar County District Attorney Office, No. 5-19-CV-0337-DAE, unpub. order at
3 (W.D. Tex. June 6, 2019) (citing same cases noted above). In that order, Judge Ezra found Silver’s motion to remand frivolous, found some asserted claims barred by res judicata, and denied a
motion to amend because it found “that allowing Plaintiff yet another opportunity to cure his pleadings is unwarranted and futile” and because Silver had filed the action in bad faith by asserting
“the same or nearly the same pleadings . . . at least twice” and they had been dismissed. Id. at 710. On that same date in a separate case, Judge Ezra also recognized Silver as a vexatious litigant,
found a motion to remand frivolous, denied a motion to amend as filed in bad faith, unwarranted,
and futile. Silver v. City of San Antonio, No. 5:19-CV-0349-DAE, unpub. order at 3-12 (W.D. Tex.
June 6, 2019) (citing same cases noted above).
Silver found himself back in the Western District of Texas when a state action commenced
by him was removed to the Austin Division and subsequently transferred to the San Antonio Division. See Silver v. Bexar County Sheriff’s Office, No. 1:19-CV-0474-RP, unpub. order (W.D.
Tex. May 23, 2019) (ECF No. 10 transferring case). This transfer resulted in Case No. 5:19-CV0561-DAE. Judge Ezra again recognized Silver as a vexatious litigant, noted that the lawsuit “is
nearly identical to several lawsuits brought by Plaintiff in this Court,” found Silver’s motion to
remand frivolous, and granted various motions to dismiss. Silver v. Bexar County Sheriff’s Office,
Case No. 5:19-CV-0561-DAE, unpub. order (W.D. Tex. June 26, 2019) (ECF No. 19). As to various unserved defendants, the Court ultimately dismissed the action and entered judgment on August 19, 2019. See id. (ECF Nos. 29-30).
Silver, furthermore, has branched out beyond the Western District of Texas. See Silver v.
Rausch Sturm Israel Enerson & Hornik LLP, No. SA-20-CV-0101-OLG, unpub. recommendation
at 1 (W.D. Tex. Mar. 5, 2020) (recommendation of Mag. J. (ECF No. 9)) (noting that case had
been transferred into the Western District from the Northern District of Texas), adopted by unpub.
4
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 5 of 20
order (W.D. Tex. Mar. 18, 2020) (ECF No. 14). Because Silver sought to proceed in forma pauperis, the transferred case was automatically referred to the Magistrate Judge per standard procedures, resulting in a recommendation that the Court deny Silver leave to proceed in forma pauperis
and dismiss the case without prejudice for failure to comply with the prefiling injunction. Id. The
Magistrate Judge explained that “to proceed as a plaintiff in a lawsuit in this district, Plaintiff must
comply with the prefiling injunction that is in place such that the Court can determine whether he
should be allowed to proceed in federal court.” Id. at 2. The Magistrate Judge further explained
that Silver “cannot avoid this prefiling injunction by first filing a lawsuit in another federal district
and then having that case transferred to this Court.” Id.
B. Relevant Appellate Rulings and Orders
On March 25, 2020, and April 6, 2020, the Fifth Circuit denied motions for leave to proceed
in forma pauperis on appeal filed by Silver, dismissed the appeals as frivolous, and warned Silver
“that future frivolous, repetitive, or otherwise abusive filings will invite the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction.” Silver v. City of San Antonio,
799 F. App’x 254, 255 (5th Cir. 2020) (per curiam) (appeal from Case No. 5:19-CV-0349); Silver
v. Bexar Cty. Sheriff's Office, 800 F. App’x 265, 266 (5th Cir. 2020) (per curiam) (appeal from
Case No. 5:19-CV-0561). On April 14, 2020, the Fifth Circuit again denied Silver leave to proceed
in forma pauperis and dismissed his appeal as frivolous. Silver v. Toyota Motor Mfg., Texas, Inc.,
801 F. App’x 304, 305 (5th Cir. 2020) (per curiam) (appeal from Case No. 5:19-CV-0422).
C. Attempts to Obtain Leave to File
On six occasions since the imposition of the prefiling injunction, Silver has sought leave
to proceed with a new civil action. Each filing has resulted in the opening of a new miscellaneous
case. See Silver v. City of San Antonio, No. 5:19-MC-1095-XR (W.D. Tex. Sept. 11, 2019) (filed
5
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 6 of 20
pro se motion for leave); Silver v. Toyota Motor Mfg., Tex., Inc., No. 5:19-MC-1397-DAE (W.D.
Tex. Dec. 2, 2019) (same); Silver v. City of San Antonio, No. 5:19-MC-1450-OLG (W.D. Tex.
Dec. 16, 2019) (same); Silver v. City of San Antonio, No. 5:19-MC-1490-JKP (W.D. Tex. Dec. 23,
2019) (same); Synchrony Bank v. Silver, No. 5:20-MC-0272-JKP (W.D. Tex. Mar. 6, 2020) (filed
pro se motion for leave to file notice of removal for state action in which he was sole defendant);
Silver v. Perez, No. 5:20-MC-0655-JKP (W.D. Tex. June 1, 2020) (filed pro se motion for leave).
Random assignment of the cases per standard procedures resulted in a different District Judge for
each of the first three cases. The latter three cases are all pending before the undersigned. The
initial three cases exhibit different approaches for handling the motion for leave, which is not surprising given that the decision is ultimately within the discretion of the Court, such motions are a
rarity in federal court given the nature of the sanction, and courts typically resolve such motions
in brief orders thus providing sparse written guidance as to the standard of review.
Silver’s first attempt at seeking leave resulted in a quick, summary order denying leave.
See Silver v. City of San Antonio, No. 5:19-MC-1095-XR, unpub. order (W.D. Tex. Sept. 20,
2019). The Court found the proposed complaint, which sought to sue the City of San Antonio
under the Fair Debt Collection Practices Act (“FDCPA”), meritless. Id. at 2. After noting that
Silver had given no basis to make any determination as to the nature of the debt, it found the
conclusory complaint insufficient. Id. Given the conclusory nature of the proposed complaint, it
found no basis to grant Silver leave to pursue the complaint and reiterated the original sanction
warning regarding imposition of monetary sanctions. Id. at 3.
Silver’s second attempt fared no better. Judge Ezra referred the matter to the randomly
assigned Magistrate Judge. To flesh out the proposed complaint to some extent, the Magistrate
Judge ordered Silver to submit a more definite statement. See Silver v. Toyota Motor Mfg., Texas,
Inc., No. SA-19-MC-1397-DAE, 2020 WL 734481, at *1-2 (W.D. Tex. Feb. 13, 2020) (recom6
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 7 of 20
mendation of Mag. J.). But even with additional material submitted by Silver, the Magistrate Judge
found the proposed complaint frivolous as pleaded and thus recommended denial of leave. See id.
Over Silver’s objection, Judge Ezra adopted the recommendation, found no plausible claim for
relief, and denied Silver leave to proceed with the proposed action. See id. unpub. order (W.D.
Tex. Feb. 28, 2020).
Silver’s third motion for leave to commence another federal civil action initially had some
limited success. On January 6, 2020, the Honorable Chief District Judge Orlando L. Garcia conditionally granted in part and denied in part the motion for leave. See Silver v. City of San Antonio,
No. 5:19-MC-1450-OLG, unpub. order (W.D. Tex. Jan. 6, 2020). Although Judge Garcia noted
that “there is no legal basis for most of Plaintiff’s alleged claims” and “it is apparent that the vast
majority of Plaintiff’s alleged causes of action are not viable,” the Court found sufficient reason
to permit Silver to conditionally proceed with his claim based on allegations that property had been
taken from him and not returned. Id. at 3-4. The Court thus partially granted the motion on the
condition that Silver file an amended complaint to assert only that claim. Id. at 4-5.
The conditional grant resulted in several filings by Silver and multiple court orders before
the Court ultimately denied Silver leave to proceed with the action due to his failure to comply
with the conditional grant of permission. See id. unpub. order at 2-3 (W.D. Tex. Apr. 16, 2020).
In that denial, the Court explained that its order “does not preclude Plaintiff from again seeking
relief . . . but Plaintiff should do so only if he is willing and able to (i) comply with court orders
and (ii) assert only those claims and allegations that are factually and legally supportable.” Id. at
3 n.3. The ultimate denial resulted in four additional motions by Silver, including a motion to
reopen case, all which the Court denied. See id. unpub. order at 2-3 (W.D. Tex. June 1, 2020).
In addition to this case, Silver has two other cases pending before the undersigned in which
he seeks leave to pursue new civil litigation in federal court. Contemporaneously with this Memor7
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 8 of 20
andum Opinion and Order, the Court has denied leave in the other two cases and has directed
Silver to show cause why the Court should not impose additional sanctions against him. Notably,
briefing in one of the contemporaneous cases has revealed that a Travis County judge has imposed
a similar prefiling restriction for state court filings and Silver’s name appears on a list of Vexatious
Litigants Subject to Prefiling Orders maintained by the Office of Court Administration. See Synchrony Bank v. Silver, No. 5:20-MC-0272-JKP (W.D. Tex. Mar. 6, 2020) (ECF No. 3 ¶ 6 n.1
(citing www.txcourts.gov/judicial-data/vexatious-litigants/)).
II. APPLICABLE LAW AND STANDARD OF REVIEW
Federal courts have inherent powers “deemed necessary to protect the efficient and orderly
administration of justice and those necessary to command respect for the court’s orders, judgments,
procedures, and authority.” In re Stone, 986 F.2d 898, 902 (5th Cir. 1993) (per curiam). These
powers include “the power to levy sanctions in response to abusive litigation practices.” Id. Furthermore, it is well-established that a recognized “need to curtail further frivolous and malicious
filings” provides a legitimate basis for a court to invoke “its general supervisory power to control
its docket.” See Green v. Carlson, 649 F.2d 285, 287 (5th Cir. Unit A 1981) (appending Mem. &
Order dated Apr. 27, 1981). Such supervisory power permits courts to place filing restrictions on
litigants. Id.
“Federal courts have the power to enjoin plaintiffs from future filings when those plaintiffs
consistently abuse the court system and harass their opponents.” Baum v. Blue Moon Ventures,
LLC, 513 F.3d 181, 190 (5th Cir. 2008). An “injunction against future filings must be tailored to
protect the courts and innocent parties, while preserving the legitimate rights of litigants.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 360 (5th Cir. 1986). Such restrictions may even be
imposed on litigants who proceed without counsel, “for one acting pro se has no license to harass
others, clog the judicial machinery with meritless litigation, and abuse already overloaded court
8
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 9 of 20
dockets.” Id. at 359. In addition, it has long been held that courts “impose the least severe sanction
adequate” to accomplish the purposes of sanctions, Akin v. Q-L Invests., Inc., 959 F.2d 521, 535
(5th Cir. 1992), which include deterrence, compensation, and punishment. Moreover, it is clearly
within a court’s discretion to enforce sanctions imposed by other courts. See Balawajder v. Scott,
160 F.3d 1066, 1067-68 (5th Cir. 1998) (per curiam).
Due to Silver’s prior conduct, Judge Rodriguez of this Court restricted his ability to file
civil actions in the San Antonio Division of the Western District of Texas without judicial approval. A proper first step in reviewing a motion for leave to file a civil action is to consider the
specific sanction imposed. Here, the sanction order imposes two specific requirements: (1) the
filing of a motion for leave to file a new civil action in the San Antonio Division and (2) attaching
the proposed complaint. Silver v. Bemporad, No. SA-19-CV-0284-XR, 2019 WL 1724047, at *4
(W.D. Tex. Apr. 18, 2019). These are not onerous procedural conditions to satisfy and Silver has
satisfied them here even though he labeled his motion for leave as a request. However, satisfaction
of all procedural prerequisites set out in the sanction order does not fully open the doors to a new
civil action. Satisfaction of these prerequisites merely clears the path for a judge to consider
whether the specifics of the proposed new civil action warrants granting Silver leave to pursue his
proposed civil action.
By not imposing additional specific requirements on Silver, the sanctioning judge did not
limit the broad discretion afforded to review a later proposed new civil action. Because issues
regarding sanctions, including whether and how to enforce previously imposed sanctions, are matters vested within their sound discretion, courts have wide latitude in how they approach and handle sanction orders that require an individual to seek leave of court to file a civil action. In general,
it is imperative that sanctioned individuals fully disclose all relevant information so that the court
can make an informed decision as to whether to permit that individual to proceed with his or her
9
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 10 of 20
proposed action. In some cases, this may even require providing documentation to support various
elements of asserted claims.
Courts do not lightly impose sanctions that require a litigant to obtain judicial approval
before filing future actions. When a court has required a pro se litigant to obtain “permission to
file suit” from a judge or court, it has imposed “the most stringent sanction” upon such a litigant.
Mendoza v. Lynaugh, 989 F.2d 191, 196 (5th Cir. 1993). Sanctions requiring judicial approval
before filing an action are “designed to avoid the waste of increasingly scarce judicial resources.”
Mayfield v. Collins, 918 F.2d 560, 561 (5th Cir. 1990). Of course, such resources have become
even more scarce in the thirty years since Mayfield. And during that time, Congress has provided
several statutory avenues to address abusive litigants by enacting the Prison Litigation Reform
Act, including 42 U.S.C. § 1997e (addressing suits by prisoners) and 28 U.S.C. §§ 1915(e) (requiring screening of actions brought in forma pauperis) and 1915A (requiring screening of prisoner actions).2
Given the harshness of the preapproval sanction, the rarity in which it is imposed, and the
recognized purpose to avoid wasting scarce judicial resources, sanctioned litigants often face an
uphill battle to obtain requested leave to pursue a new civil action. Nevertheless, courts review
each proposed case on its own potential merit, or lack thereof, and it is within the court’s discretion
as to how stringently it reviews each proposed new case. While a given case may present particularly egregious facts or a legal issue that warrants granting leave to preserve the legitimate rights
of the individual seeking leave, courts are well within their considerable discretion to deny leave
2
Although some of these statutes apply only to prisoners, they still exhibit the lengths Congress will go to address
abusive practices. For instance, § 1997e contains several provisions to curb prisoner actions in federal court, including
subparagraph (a) (requiring prisoners to exhaust available administrative remedies before filing an action); subparagraph (c) (directing courts to screen “any action brought with respect to prison conditions” for frivolousness, maliciousness, failure to state a claim, and immunity); and subparagraph (e) (limiting recovery by requiring “a prior showing of physical injury or the commission of a sexual act”).
10
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 11 of 20
for procedural infirmities such as a failure to exhaust, apparent untimeliness, and issues with venue
or joinder. Naturally, a court may deny leave on more substantive reasons, such as assertion of
claims that are merely conclusory, lack merit, or lack sufficient facts to adequately determine
whether the claim has merit. A sanctioned individual has no legitimate right to pursue a procedurally defective complaint or one that contains claims that lack a sufficient factual basis to survive
screening or a motion to dismiss. A sanctioned individual has no legitimate right to sue defendants
without allegations showing their personal involvement.
Reviewing courts must balance the rights of such individual against the need to protect
courts and innocent parties from abusive and vexatious litigation. Within the bounds of their broad
discretion, courts may apply whatever standard deemed warranted when reviewing the proposed
complaint. But in exercising that discretion, courts should remain mindful that court-imposed sanctions are in addition to applicable statutory screening mechanisms like §§ 1915(e), 1915A, and
1997e and statutory sanctions, such as the three strikes provision of 28 U.S.C. § 1915(g).
The statutory screening mechanism of § 1915(e) “gives courts the authority to pierce the
veil of the complaint’s factual allegations” and “a court is not bound, as it usually is when making
a determination based solely on the pleadings, to accept without question the truth of the plaintiff’s
allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citation and internal quotation marks
omitted). But such screening “cannot serve as a factfinding process for the resolution of disputed
facts” and courts may not use such screening to dismiss a complaint “simply because the court
finds the plaintiff’s allegations unlikely.” Id. at 32-33.
Naturally, because a judicial preapproval sanction or prefiling injunction typically provides
an additional layer of review on actions filed in forma pauperis or by prisoners, the review certainly need not even reach the level required by the statutory screening mechanisms. Indeed, were
courts to simply apply an already applicable screening requirement instead of a lesser review, they
11
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 12 of 20
would take much of the bite out of the preapproval sanction and eliminate the time-saving component of the imposed sanction. For a prefiling injunction to have the intended impact, it must not
merely require a reviewing official to apply an already existing level of review. Consequently,
courts reviewing a sanctioned individual’s proposed pleading may appropriately deny leave to file
when even part of the pleading fails to satisfy the reviewer that it warrants a federal civil action.
And, depending on the circumstances, reviewing courts may deny leave on grounds that the sanctioned litigant’s allegations are unlikely. This is especially true when prior cases have shown the
litigant to be untrustworthy or not credible or that the litigant previously fabricated facts or exhibited a lack of candor with the courts.
An individual who has abused the judicial process to such an extent as to receive the harsh
sanction of judicial preapproval for future actions has no basis to complain if the reviewing court
or judge expects procedural compliance in all or nearly all respects, proper venue for the action,
proper joinder of parties and claims, non-conclusory factual allegations, and a statement of facts
sufficient to survive statutory screening and a motion to dismiss. If significant factual development
appears warranted to survive screening, such need may of itself provide a basis for denying leave
to file, although it remains within the discretion of a particular reviewing judge to provide an opportunity for further factual development. Furthermore, given the nature of a prefiling injunction,
merely satisfying the minimal requirements to survive screening or a motion to dismiss may not
always carry a sanctioned litigant’s burden to persuade the Court that it should permit a proposed
action to be filed.
III. REVIEW OF PRESENT CASE
Silver commenced this miscellaneous action by submitting his Request and Order to File
New Litigation by Vexatious Litigant (ECF No. 1) and the Court has construed that filing as a
motion for leave. He seeks to file a civil rights action pursuant to 42 U.S.C. § 1983 and for
12
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 13 of 20
conspiracy under 18 U.S.C. § 241. Request at 1. Within his motion, he asserts that his new filing
has merit because Officer Cummings exceeded his authority and jurisdiction and
acted in concert with the remaining Defendant to effect the unlawful loss of Personal Properties, liberty, Rights, privileges, or immunities secured by the Constitution and laws of the United States of America, the Common Laws and Constitution
of the Great State of Texas against Silver, Frederick-Omoyuma and shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding
for redress.
Id. at 1-2. He also asserts that he is not filing the action to harass or cause delay. Id. at 2.
As mentioned, Silver has complied with the minimal requirements for having this Court
review his motion for leave to file the proposed complaint attached to his motion. Of course, the
filing of a civil action also invokes various statutes, the Federal Rules of Civil Procedure, and the
local rules of this Court that govern civil actions. Of particular relevance to this action, Silver has
neither paid the $350 filing fee for commencing a new civil action (plus a required $50 administrative fee) nor the $47 fee “[f]or filing any document that is not related to a pending case or
proceeding.” See 29 U.S.C. § 1914(a)-(b); District Court Miscellaneous Fee Schedule (issued in
accordance with § 1914). Nor has he moved to proceed with this action in forma pauperis without
prepayment of the fees. See 28 U.S.C. § 1915(a). Such deficiencies cut against granting him leave
to pursue his proposed civil action.
But the Court need not rely on such procedural deficiencies to deny leave on the present
motion. The proposed complaint presents substantive reasons for denying leave. Before setting out
those reasons, however, a brief summary of the proposed complaint is warranted.
Silver lists six specific proposed claims: (1) false imprisonment/arrest; (2) intentional infliction of emotional distress; (3) vicarious liability, (4) trespass to personal property, (5) due process, and (6) substantive due process. See Orig. Compl. ¶¶ 38-51. Prior to those six claims, he
asserts a generic claim against all defendants, pursuant to 42 U.S.C. § 1983, for a Fourth Amend13
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 14 of 20
ment violation; then references the Fifth and Fourteenth Amendments; and finally states in conclusory fashion that all defendants “acted or failed to act under color of state law”; were “deliberately indifferent” to his constitutional rights; “acted in an objectively unreasonable manner when
seizing, searching, and using force” with him; and “exercised constitutionally impermissible excessive force. See id. ¶ 37. He lists three defendants and appears to assert all claims against each
of them. See id. ¶¶ 2-4, 37. He asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343(4) while
stating that his claims arise under § 1983 and 18 U.S.C. § 241. He sets out his factual allegations
in several paragraphs. Id. ¶¶ 10-36.
A sampling of Silver’s proposed claims reveals substantive reasons for denying him leave
to file the proposed complaint. The facts as to his alleged false imprisonment/arrest relate to events
on September 14, 2019, when Officer Cummings allegedly acted without jurisdiction or probable
cause “[a]t the onset of the unlawful imprisonment at inside plaintiff apartment.” Id. ¶¶ 13-14.
Silver complains that Officer Cummings interrupted his freedom by knocking on his front door
and inquiring whether he owned the “White 2011 Mazda . . . parked in the parking lot of the private
apartment complex.” Id. ¶¶ 13-14, 18. When Silver answered “Yes,” Officer Cummings informed
him that the license plate was a stolen plate, the VIN on the car came back to Silver, and that is
why he knocked on the door inquiring about the car. Id. ¶ 18. At that point, Silver said that the
automobile was unregistered and that he did “not need to provide proof of identification.” Id. ¶ 19.
When Silver left his apartment, Officer Cummings was parked behind his car causing Silver to ask: “what is the issue at this time?” Id. ¶ 20. Officer Cummings ultimately informed Silver
that he “was under arrest for having a stolen license plate on [his] vehicle.” Id. ¶ 25. After taking
Silver’s identification, Officer Cummings informed Silver that “there was a warrant out for [his]
arrest,” but would not show Silver the warrant and did not read him his Miranda rights before
arresting him. Id. ¶ 26.
14
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 15 of 20
Silver has provided the police report from the September 14, 2019 detention and arrest. See
ECF No. 1-1. The report adds the following information: (1) the license plate on Silver’s vehicle
came back “as an active stolen vehicle”; (2) the VIN number on Silver’s vehicle did not match the
stolen vehicle but showed it was registered to Silver’s listed apartment; (3) when Silver left his
apartment, he tried to show a receipt without full explanation and when he “opened the door and
entered the listed vehicle,” the officer states he “had probable cause to detain” Silver; (4) at that
point, Silver still refused to identify himself, the officer handcuffed him and checked for weapons,
and Silver provided a name and date of birth once the officer indicated he could be charged with
“failure to identify”; (5) an identification check revealed four outstanding warrants for Silver
which “were verified by the municipal court”; (6) Silver was then “placed under arrest for the
listed warrants”; (7) Silver “later explained that he purchased the license plates from an online
website” and after the officer verified that Silver’s vehicle was otherwise unrelated to the stolen
vehicle, the officer advised Silver “to remove the license plates from his vehicle when he was
released, not to operate his vehicle with those plates still attached, and to properly register his
vehicle with the DMV”; and (8) the officer transported Silver for booking on the listed warrants.
See id.
As recognized by Silver, a false imprisonment claim requires detention without authority
of law. Orig. Compl. ¶ 38. But as reflected in Silver’s factual allegations and supported by the
police report, Officer Cummings had authority of law to detain and arrest Silver based on the stolen
plates on his vehicle and the outstanding arrest warrants. Once Silver’s false imprisonment/arrest
claim falls, most of his remaining claims unravel due to their association with the false imprisonment/arrest claim. The conclusory excessive force claim appears to stand without need of the false
imprisonment/arrest claim, but it too lacks sufficient facts to warrant granting leave to pursue it.
15
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 16 of 20
Furthermore, in a prior action, Silver has already demonstrated an unwillingness to properly amend
a proposed complaint so as to pursue a particular identified claim.
The Court further notes that, with respect to facts concerning the San Antonio Police Department, Silver’s allegations amount to little more than mere recitation of the elements for municipal liability. See id. ¶¶ 27-30. Similarly, his assertion of liability under Monell v. Department
of Social Services, 436 U.S. 653 (1978) is likewise just reciting the elements of such a claim and
conclusory claims that field searches are ineffective. See id. ¶¶ 34-35. In addition, in a single paragraph, Silver seeks to hold each defendant “vicariously liable,” while citing cases for the proposition that a local governmental unit may not be held responsible for acts of its employees under a
respondeat superior theory of liability and vicarious liability is inapplicable for suits under § 1983.
See id. ¶ 33. Finally, Silver’s reliance upon § 241 is suspect and his allegations of conspiracy are
conclusory.
Based on the above deficiencies regarding the merits of claims that Silver seeks to assert,
the Court denies his motion for leave to file the proposed complaint and commence a civil action
against the three defendants listed therein.
IV. PROPRIETY OF ADDITIONAL SANCTIONS
When Judge Rodriguez deemed Silver a vexatious litigant and sanctioned him, Silver was
also warned that he could be monetarily sanctioned for filing further frivolous actions or motions.
See Silver v. Bemporad, No. SA-19-CV-00284-XR, 2019 WL 1724047, at *4 (W.D. Tex. Apr. 18,
2019). Judge Rodriguez reiterated that warning while denying Silver’s initial motion/request for
leave to pursuant a new civil action. See Silver v. City of San Antonio, No. 5:19-MC-1095-XR,
unpub. order at 3 (W.D. Tex. Sept. 20, 2019). The Fifth Circuit subsequently dismissed appeals as
frivolous and warned Silver “that future frivolous, repetitive, or otherwise abusive filings will invite the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions
16
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 17 of 20
on his ability to file pleadings in this court and any court subject to this court’s jurisdiction.” Silver
v. City of San Antonio, 799 F. App’x 254, 255 (5th Cir. 2020) (per curiam) (appeal from Case No.
5:19-CV-0349); Silver v. Bexar Cty. Sheriff's Office, 800 F. App’x 265, 266 (5th Cir. 2020) (per
curiam) (appeal from Case No. 5:19-CV-0561); Silver v. Toyota Motor Mfg., Texas, Inc., 801 F.
App’x 304, 305 (5th Cir. 2020) (per curiam) (appeal from Case No. 5:19-CV-0422) (dismissing
appeal as frivolous but not issuing a warning of future sanctions).
Not only has Silver filed frivolous appeals since being deemed a vexatious litigant, but he
has pursued other litigation that has resulted in dismissed actions and has to date, unsuccessfully
sought leave to proceed with new civil actions on three occasions. And that number has doubled
with the denial within this Memorandum Opinion and Order and similar ones contemporaneously
issued in Silver’s two other cases pending before the undersigned. The imposed sanction has
clearly not deterred Silver from engaging in further sanctionable conduct.
The Fifth Circuit permits courts to broaden the scope of prefiling injunctions “based on
changed factual circumstances.” Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 188 (5th Cir.
2008). And courts may do so sua sponte so long as “the party enjoined is given notice and a hearing.” Id. at 188-89; accord Qureshi v. United States, 600 F.3d 523, 526 (5th Cir. 2010). Whether
initially imposing or later modifying a prefiling “injunction to deter vexatious filings, a court must
weigh all relevant factors,” including (1) relevant litigation history, particularly “vexatious, harassing, or duplicative lawsuits”; (2) existence of “a good faith basis for pursuing the litigation” or
whether the litigant “simply intended to harass”; (3) the resulting “burden on the courts and other
parties” from the litigant’s filings; and (4) “the adequacy of alternative sanctions.” Baum, 513 F.3d
at 188 (quoting Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir. 2004)). And the
district courts have jurisdiction to issue or modify a prefiling injunction even after dismissal of a
case. Qureshi, 600 F.3d at 526.
17
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 18 of 20
Because the undersigned did not issue the initial prefiling injunction, modification of that
injunction appears outside the authority of this case. But that does not prevent the undersigned
from issuing a similar injunction which incorporates the prior injunction, expands upon it, and
imposes new requirements or additional sanctions. For a vexatious litigant, appropriate filing restrictions may include requiring the litigant (1) “to alert state courts of his history of vexatious
filings in the federal courts,” Baum, 513 F.3d at 191 (citing Martin-Trigona v. Lavien (In re Martin-Trigona), 737 F.2d 1254, 1263 (2d Cir. 1984) with approval) and (2) to inform any federal
district court “of pertinent facts concerning the action he seeks to bring, including the existence of
the injunction order and of outstanding litigation against the named defendants, and that he obtain
leave of that court to file the action,” Martin-Trigona, 737 F.2d at 1262. The latter restriction
expands upon the earlier sanction warning to Silver regarding filing restrictions in any federal
district court within the jurisdiction of the Fifth Circuit. Courts may also impose other appropriate
sanctions on vexatious litigants. They may impose monetary sanctions for frivolous, duplicative,
or otherwise abusive filings, including ordering a monetary sanction paid directly to the clerk of
this court “for deposit into the Treasury of the United States.” Farguson v. MBank Houston, N.A.,
808 F.2d 358, 360 (5th Cir. 1986).
In light of Silver continuing to engage in sanctionable conduct, the Court will order him to
show cause why it should not further sanction him by expanding upon the original prefiling injunction and imposing other sanctions such as:
(1) Extending the current prefiling injunction to any federal district court or any
federal district court within the jurisdiction of the Fifth Circuit.
(2) Expressly extending the current injunction to apply to actions commenced by
Silver and removed from state court or transferred from another federal court. Although the existing state prefiling injunction imposed against Silver may lessen the
need for such extension in the removal context, it does not eliminate the need. Such
extension would likely require some modification of the federal prefiling injunction
in such a removal or transfer context. The injunction could be modified as follows:
18
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 19 of 20
Unless the receiving court orders otherwise, Silver may file a motion
to remand in a removed action without obtaining separate leave of
court. If a motion to remand is improper under the circumstances or
if the receiving court so orders, Silver shall ask for judicial approval
to continue with the removed action while complying with all aspects of the prefiling injunction (except for the need to file a proposed complaint) as extended and supplemented by any court order.
(3) In addition to requiring the filing of a motion for leave with an accompanying
proposed complaint, an expanded injunction could require Silver to also:
(a) Pay the appropriate filing fee ($47 or $350 depending on whether
the court opens a civil or miscellaneous action upon the filing of the
motion for leave)3 plus the $50 administrative fee for civil actions
or a motion to proceed in forma pauperis.
(b) File a “Notice Regarding Sanctions,” which will identify by case
number and order date (i) every sanction imposed upon Silver and
(ii) every sanction warning issued to him, whether by a federal or
state court.
(c) File as an attachment to the “Notice Regarding Sanctions,” a
copy of each order that imposes sanctions or issues a sanction warning.
(d) File as an appendix, documentation to support any claim requiring the showing of an injury.
(4) Requiring Silver to alert state courts of his history of vexatious federal filings.
V. CONCLUSION
For the foregoing reasons the Court DENIES the Request and Order to File New Litigation
by Vexatious Litigant in Western District Court (ECF No. 1); DENIES the Motion on Case Status
(ECF No. 2); DENIES Plaintiff’s Motion to Amend Case Caption (ECF No. 3); and DENIES
Plaintiff’s Motion for Action on this Case (ECF No. 4). The latter three motions are unnecessary,
and Silver has not carried his burden to persuade the Court that he should be permitted to pursue
the complaint attached to his motion for leave. In addition, the Court finds that Silver has continued
Some courts open a civil action in similar situations, whereas Silver’s litigation history shows that miscellaneous
cases are opened on such filings.
3
19
Case 5:19-mc-01490-JKP Document 5 Filed 07/07/20 Page 20 of 20
to engage in sanctionable conduct and thus orders him to show cause on or before July 21, 2020,
why the Court should not further sanction him by expanding upon the original prefiling injunction
and imposing other sanctions. The Court instructs the Clerk of Court to mail this Memorandum Opinion and Order to Silver via certified mail, return receipt requested.
SIGNED this 7th day of July 2020.
JASON PULLIAM
UNITED STATES DISTRICT JUDGE
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?