United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
the Court is Rickye Henderson's Application to Proceed In
Forma Pauperis (Dkt. No. 2) and Financial Affidavit in
Support, along with his Complaint (Dkt. No. 1) and Amended
Complaint (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 of the United States
District Court for the Western District of Texas, Local Rules
for the Assignment of Duties to United States Magistrate
APPLICATION TO PROCEED IN FORMA PAUPERIS
reviewing Henderson's Application to Proceed In Forma
Pauperis, the Court finds that he is indigent.
Accordingly, the Court HEREBY GRANTS Henderson 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
that 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). Henderson is
further advised that although he has 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. Moore v. McDonald, 30
F.3d 616, 621 (5th Cir. 1994).
stated below, this Court has conducted a § 1915(e)
review of the claims made in Henderson's Complaint and is
recommending his claims be dismissed under 28 U.S.C. §
1915(e). Therefore, service upon the 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 the Defendants.
SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Henderson has been granted leave to proceed in forma
pauperis, the Court is required by standing order to
review her 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).
complaints are liberally construed in favor of the plaintiff.
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).
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). There are two basic types of jurisdiction:
diversity and federal question. Diversity jurisdiction
requires (1) that “the matter in controversy exceed[ ]
the sum or value of $75, 000” (i.e., the amount of
money the plaintiff is seeking) and (2) that the case be
between, among other things, “citizens of different
states.” 28 U.S.C. § 1332. By contrast, federal
question jurisdiction requires that the case arise
“under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331.
court does not have subject matter jurisdiction, it must
dismiss the case. Moreover, “the court has an
affirmative duty to raise [ ] issues regarding subject matter
jurisdiction, sua sponte, whenever a problem with subject
matter jurisdiction is perceived.” Dominguez-Cota
v. Cooper Tire & Rubber Co., 39 F.3d 650, 652 n.1
(5th Cir. 2005)); Tex. Div., Sons of Confederate Veterans
v. Vandergiff, 759 F.3d 388, 392 (5th Cir. 2014)
rev'd on other grounds, 135 S.Ct. 2236 (2015)
(“Neither party has argued that this court lacks
jurisdiction, but federal courts have a duty to consider
their subject matter jurisdiction sua sponte.”). A pro
se plaintiff's mere assertion of a federal statute, which
clearly does not apply, is insufficient to invoke federal
question jurisdiction. See, e.g., Lopez v.
Kora, 3:12-CV-0510-M BK, 2012 WL 1242376, at *2 (N.D.
Tex. Mar. 12, 2012) (dismissing sua sponte a pro se
plaintiff's case for lack of subject matter jurisdiction
because the federal statutes cited did not provide a cause of
action that applied to the plaintiff's claims), report
and recommendation adopted, 3:12-CV-0510-M BK, 2012 WL
1242341 (N.D. Tex. Apr. 12, 2012).
case, Henderson cannot establish diversity jurisdiction as he
has pled that both he and the defendants are residents of
Texas. See McLaughlin v. Mississippi Power Co., 376
F.3d 344, 353 (5th Cir. 2004). In order to establish
diversity jurisdiction, 28 U.S.C. § 1332 requires
complete diversity of citizenship, that is, a district court
cannot exercise jurisdiction if any plaintiff shares the same
citizenship as any defendant. Getty Oil Corp. v.
Insurance Co. of North America, 841 F.2d 1254, 1258 (5th
Cir. 1988). As the parties are not diverse, this Court cannot
exercise diversity jurisdiction.
Henderson must establish that this Court has federal question
jurisdiction. Here, Henderson makes a claim under 42 U.S.C.
§ 1983. All other claims in his complaint are based on
Texas state law,  and thus cannot provide jurisdiction. The
Court therefore must assess whether Henderson properly
alleges a claim under § 1983. Section 1983 “is not
itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386,
393-94 (1989) (internal quotations omitted). To state a claim
under § 1983, a “plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of
the United States, and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of
state law.” Moore v. Willis Indep. Sch. Dist.,
533 F.3d 871, 874 (5th Cir. 2000).
has failed to allege a valid claim under Section 1983 as none
of the defendants were acting under color of state law. While
it is not required that any of the defendants be state
actors, they must be “willful participant[s] in joint
action with the State or its agents. Private persons, jointly
engaged with state officials in the challenged action, are
acting  ‘under color' of law for purposes of
§ 1983 actions.” Dennis v. Sparks, 449
U.S. 24, 27-28 (1980). A claim under ...