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Aguero v. Chase Bank, N.A.

United States District Court, W.D. Texas, Austin Division

June 2, 2017

FRANCISCO J. AGUERO, Plaintiff
v.
CHASE BANK, N.A., Defendants

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

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         To: HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Francisco J. Aguero's Application to Proceed In Forma Pauperis (Dkt. No. 2) and Motion for Notice Via Marshalls (Dkt. No. 3). 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.

         I. APPLICATION TO PROCEED IN FORMA PAUPERIS

         After reviewing the financial information in Aguero's in forma pauperis motion, the Court finds that he is indigent. Accordingly, the Court HEREBY GRANTS Aguero 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 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). Aguero is further advised that although he has been granted leave to proceed in forma pauperis, the 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, the undersigned has conducted a § 1915(e) review of the claims made in Aguero's Complaint and is recommending that the claims be dismissed under 28 U.S.C. § 1915(e). 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 Defendants.

         II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW

         Because Aguero 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 the plaintiff's favor. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The court must “accept as true factual allegations in the complaint and all 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).

         A. Factual Allegations and Claims

         In Aguero's complaint, he brings a litany of claims aimed at the defendants, which include:

Official corruption, abuse of power, official oppression, official perjury, witness tampering, ex parte communication to violate my rights to a fair trial, self-representation, honest services fraud, violation of the Hobbs Act-quid pro quo, mail and wire fraud, travel act (forcing the defendandt [sic] to travel every month for 4 years to be subjected to these civil rights violations[)], intimidation-fear. Federal program theft/bribery (SSA Title IV-D) money laundering, obstruction of justice, misleading conduct by government official, malfeseance [sic] in office, multiple counts (5x) of right to trial by an impartial judge, deprivation of rights under color of law (4x), colluding, collude, collusion (4x), 18 USC § 201 A-B-1-B. ADA discrimination (disabled veteran) knowingly seizing VA disability benefits, stating in court that “doesent [sic] matter what the law says (federal) I can and will take it”. Violation of the public duty doctirine [sic] (disabled veteran) and negligence on behalf of parties of United States of America and others with enforcement/oversight responsibility.

Dkt. No. 1 at 4-5. This list of claims is met with an equally long list of defendants, including:

Chase Bank, N.A.; United States of America, HHS [Health and Human Services] (OIG), CFPB [Consumer Financial Protection Bureau] (OIG), FBI (Federal Bureau of Investigation-James Brien Comey Jr. (Official Capacity Director of FBI), FBI (SA [San Antonio] Field Office) Border Corruption Task Force Laredo and Lower Rio Grande Jurisdiction; United States Attorney General-Jeff Sessions (As current office holder only), U.S. Attorney's Office Laredo Texas, U.S. Attorney's Office Dallas Texas; State of Texas, Supreme Court of Texas, Fourth Court of Appeals, Texas Office of Attorney General Child Support Division, OAG [Office of Attorney General] CSD [Child Support Division] Office Laredo Texas: Adlofo [sic] Garcia . . ., Ms. Levine Counsel OAG CSD, Ms. Garza Counsel OAG CSD Laredo TX, Bryan Christopher Banks . . ., Joseph Lee Haley . . . OAG CSD, as well as various unnamed others in TX OAG-CSD Lareo [sic] office, San Antonio Texas office and Austin TX headquarters (all as in an official and personal capacity), State Bar of Texas, Texas Judicial Review Board, Texas Department of Public Safety, ...

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