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Burgess v. U.S. Department of Education

United States District Court, E.D. Texas, Sherman Division

June 19, 2017


          Nowak, Judge



         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On April 21, 2017, the report of the Magistrate Judge (Dkt. #30) was entered containing proposed findings of fact and recommendations that Plaintiff Nathan Burgess's Second Amended Complaint (Dkt. #25) be dismissed. Having received the report and recommendation of the Magistrate Judge (Dkt. #30), having considered Plaintiff's objections (Dkt. #31), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #30) as the findings and conclusions of the Court.


         Pro se Plaintiff Nathan Burgess filed the present lawsuit asserting various claims against over seventy named Defendants and one million John Doe Defendants (Dkt. #1; Dkt. #25). Plaintiff's Second Amended Complaint (Dkt. #25) spans sixty-five pages and includes nearly one hundred additional pages of attachments. The Court discerns from Plaintiff's pleadings and attachments that Plaintiff's lawsuit derives largely from his dissatisfaction with his legal representation (or lack thereof) during a prior state criminal proceeding (Dkt. #25 at 2 (alleging the Defendants “depriv[ed] Plaintiff of his U.S. and Texas Constitutional and Federal and State Statutory rights to be represented, (assisted by state ‘approved' legal counsel), by zealous legal counsel, during a criminal trial”)). Plaintiff's prior criminal proceeding relates to an eviction from a home in Murphy, Texas, that Plaintiff and his family inhabited for a brief time (see Dkt. #25 at 6-21). Plaintiff and/or his family members inhabited the home pursuant to an agreement with staging company Castle Keepers, Inc. (“Castle Keepers”). Castle Keepers, acting on behalf of homeowner Aji Philip, had placed Plaintiff's family in the home to make it appear more “lived in” while it was for sale. In May 2012, however, Philip asked that Plaintiff and his family be removed from the home. Castle Keepers filed a forcible detainer action against Plaintiff's family members that same month. Castle Keepers prevailed and, on July 9, 2012, the Court issued a writ of possession to the constable's office. See Castle Keepers, Inc. v. Drew Burgess, , Collin County Cause No. 32-EV-12-00312; see also Dkt. #25 at 8-9. Thereafter, and on July 13, 2012, the Murphy Police Department was dispatched to the home. Plaintiff alleges that, on this date, while Plaintiff was attempting to move a glass display into a moving truck, Plaintiff somehow shattered the display; Sergeant James Hermes had Plaintiff arrested as a result for illegal dumping (Dkt. #25, Exhibit 1-M at 87). See also Burgess v. State, No. 05-14-00216-cr, 2015 WL 4628728, at *2 (Tex. App.-Dallas Aug. 4, 2015, pet. denied). From this arrest arose the criminal case that forms the basis of Plaintiff's present suit (see, e.g., Dkt. #31 at 4-5, 8; Dkt. #25 at 7-30). Plaintiff asserts both the (civil) forcible detainer proceeding and his criminal proceeding were rife with procedural irregularities and mistreatment of both himself and his family. Plaintiff believes the mistreatment he experienced during his criminal proceeding reflects a vast conspiracy between the American Bar Association, the Department of Education, and all licensed attorneys that deprived Plaintiff of his constitutional right to effective assistance of counsel (see Dkt. #25 at 2-3, 25-51).

         In light of these allegations, Plaintiff requests “equitable and other relief” based on his “specified property interest in the original contract, ‘The Constitution of the United States of America'” (Dkt. #25 at 1). Plaintiff asserts the following causes of action as a basis for this relief: (1) “Misappropriation of Chattel Property (Common law crime)”; (2) “Acquisition and Maintenance of an Interest in and Control of an Enterprise Engaged in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1961(5), 1962(b)”; (3) “Conduct and Participation in a RICO Enterprise through a Pattern of Racketeering Activity: 18 U.S.C. §§ 1961(5), 1962(c)”; (4) “Conspiracy to Engage in a Pattern of Racketeering Activity: 18 U.S.C. §§ 1961(5), 1962(d)”; (5) “Fifth Amendment Violation (Bivens v. VI Unknown Agents of Federal Bureau of Narcotics)”; and (6) “First Amendment Violation (Bivens v. VI Unknown Agents of Federal Bureau of Narcotics)” (Dkt. #25 at 56-64).

         Plaintiff has previously asserted many of these claims before the Court. See Eastern District of Texas Case No. 4:14-cv-466 (hereinafter the “Original Federal Suit”). Indeed, as the Magistrate Judge made clear, the bulk of Plaintiff's claims in the instant suit grow out of the same circumstances underlying the Original Federal Suit; it appears “Plaintiff merely names new Defendants in this lawsuit and further engrafts charges of a vast conspiracy to explain the outcome of those events” (Dkt. #30 at 8). As such, the Magistrate Judge entered a report and recommendation on April 21, 2017, recommending that each and every one of Plaintiff's claims against each and every one of Defendants be dismissed with prejudice under 28 U.S.C. § 1915(e) (Dkt. #30). Plaintiff timely filed objections on May 8, 2017 (Dkt. #31), which the Court now considers.


         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). Plaintiff's objections are largely duplicative and repetitive of each other; after reviewing Plaintiff's filing, the Court discerns Plaintiff objects as follows to the Magistrate Judge's report and recommendation: (1) the Magistrate Judge improperly found that Plaintiff's claims relate to his eviction from Philip's home rather than to his state criminal proceedings; and (2) the Magistrate Judge erroneously recommended dismissal with prejudice of Plaintiff's claims for frivolousness.

         Objection:Characterization of Plaintiff's Claims

         Plaintiff seemingly objects that the Magistrate Judge improperly found Plaintiff's claims arise out of his eviction from Philip's home rather than out of his related criminal proceedings for illegal dumping. Plaintiff claims he was not “evicted” and that the instant lawsuit does not raise the same claims and/or focus on the same factual scenario as did the Original Federal Suit.[1] To that end, Plaintiff argues the Magistrate Judge characterizes his claims in a dishonest manner. However, the Court notes Plaintiff devotes fifteen pages of his Second Amended Complaint solely to discussing the forcible detainer proceeding (see Dkt. #25 at 6-21) and indicates that the alleged wrongs he purportedly suffered during that proceeding led in part to his RICO conspiracy allegations (Dkt. #25 at 21). Further, in identifying his causes of action, Plaintiff expressly “repeat[s] and re-allege[s] each and every allegation of the foregoing paragraphs[, ]” including those related to the forcible detainer proceeding (Dkt. #25 at 56-57, 60-63). The Magistrate Judge clearly relied upon Plaintiff's own allegations and representations in finding Plaintiff's claims arise not only from his criminal proceeding, but also from the civil forcible detainer proceeding that preceded it and which were the subject of the Original Federal Suit (see Dkt. #30 at 2-9).

         The Fifth Circuit has found claims “involv[ing] the same general series of events, facts, and conditions that were at issue in an earlier . . . proceeding[]” constitute “‘[r]epetitious litigation of virtually identical causes of action' . . . properly dismissed as frivolous.” McBarron v. Fed. Bureau of Prisons, 332 F. App'x 961, 963-64 (5th Cir. 2009) (per curiam). The Fifth Circuit also has upheld dismissal of claims as frivolous for duplicating claims “grow[ing] out of the same allegations” raised in a previous lawsuit, even where a plaintiff attempts to “raise new claims” or to add new defendants. Potts v. Texas, 354 F. App'x 70, 71 (5th Cir. 2009) (per curiam); see also Potts v. Texas, No. 1:07-CV-632, 2008 WL 4525007, at *3 (E.D. Tex. Sept. 26, 2008) (“While there may be some new defendants and claims buried within the original and two amended complaints filed in this district, the new factual allegations are the same ‘clearly baseless, ' ‘fanciful, ' ‘fantastic, ' ‘delusional, ' and ‘irrational or the wholly incredible' types of claims that were dismissed as frivolous in the southern district of Texas. They require the same action here.”).

         In the instant case, Plaintiff's first, fifth, and sixth causes of action (for misappropriation of chattels and for Fifth and First Amendment violations under Bivens, respectively), which Plaintiff raises against all named Defendants, duplicate Plaintiff's previous claims in the Original Federal Suit. Plaintiff's claims that Defendants misappropriated his property and/or violated his civil rights rehash his claims under Section 1983 from the Original Federal Suit, as they each arise out of allegations that his personal property and home, as well as his liberty, were taken inappropriately (see Dkt. #26 in Original Federal Suit). The Court fully considered those claims in the Original Federal Suit, and Plaintiff's repetition of them here does not occasion their reconsideration. See McBarron, 332 F. App'x at 963-64 (finding “claims involv[ing] the same general series of events, facts, and conditions that were at issue in an earlier . . . proceeding” properly dismissed because the petitioner “had an adequate opportunity for ‘one bite at the litigation apple.'”). Moreover, upon review, each and every claim Plaintiff raises in the instant lawsuit grows out of the same factual scenario raised in the Original Federal Suit, namely the forcible detainer proceeding against Plaintiff and/or his family and the closely related criminal proceeding against Plaintiff (see Dkt. #36 in Original Federal Suit). Although Plaintiff now further alleges a vast conspiracy between the ABA, Department of Education, and every licensed attorney in the nation, Plaintiff's addition of new defendants and claims he neglected to raise previously does not salvage his otherwise wholly duplicative claims. See, e.g., Potts, 354 F. App'x at 71; Potts, 2008 WL 4525007, at *3. Accordingly, the Magistrate Judge properly found Plaintiff's claims duplicative of his previous claims and thus subject to dismissal. The Court overrules Plaintiff's objection.

         Objection:Dismissal with ...

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