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Jackson v. Schaefer

United States District Court, N.D. Texas, Dallas Division

April 16, 2018

JOSHUA WILLIAM JACKSON (BOP Register No. 54191-177), Plaintiff,
v.
ALLISON M. SCHAEFER, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         This pro se civil rights action has been referred to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Sidney A. Fitzwater. The undersigned enters these findings of fact, conclusions of law, and recommendation that, for the reasons stated below, the Court should dismiss this action without prejudice under Federal Rule of Civil Procedure 41(b).

         Applicable Background

         Plaintiff Joshua William Jackson, a federal prisoner, filed this action against two federal agents, three federal agencies, and the Wichita Falls Police Department concerning the execution of a search warrant at his home in April 2016, see Dkt. No. 3, through which he seeks monetary relief for alleged property damage and “unnecessary pain and suffering, ” id. The day after this action was filed, the Court entered a Notice of Deficiency and Order (the “NOD”) that cautioned Jackson that

[t]he complaint [he] filed ... is not signed as required by Federal Rule of Civil Procedure 11(a). Accordingly, Jackson must file an amended complaint that includes his signature by March 12, 2018. While resubmitting a signed version of the original complaint would remedy this deficiency, the Court WARNS Jackson that, as currently pleaded, his claims against several defendants are subject to summary dismissal.
A plaintiff may not bring a civil action against a servient political agency or department unless that agency or department enjoys a separate and distinct legal existence. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). In Darby, the Fifth Circuit held that, “unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself.” Id. at 313. For example, as this Court has repeatedly recognized, the police departments of Texas municipalities are not jural entities subject to suit. See, e.g., Hagwood v. Dallas Police Dep't, No. 3:15-cv-2622-L-BN, 2015 WL 6688721, at *3 (N.D. Tex. Sept. 11, 2015), rec. accepted, 2015 WL 6690045 (N.D. Tex. Oct. 30, 2015).
“The United States enjoys sovereign immunity from suit, meaning it cannot be sued without consent.” Gonzalez v. United States, 851 F.3d 538, 543 (5th Cir. 2017) (citations omitted). Accordingly, a “[a] plaintiff may only sue the United States if a federal statute explicitly provides for a waiver of sovereign immunity.” In re FEMA Trailer Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012). And the sovereign immunity of the United States extends to its agencies. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”).
Further, the Court will not screen Jackson's amended complaint, should one be filed, until either (1) the full filing fee ($400.00) is received or (2) he files a proper motion to proceed in forma pauperis (“IFP”) and attaches to that motion a certificate of inmate trust account.
To remedy this deficiency, attached to this order is a form application to proceed IFP - prisoner. And it is hereby ORDERED that Jackson must (if he qualifies to proceed IFP) complete and file an IFP motion no later than March 12, 2018. But if the Court receives the full filing fee before that time, Jackson may disregard this portion of the order, and the Court will screen his claims as presented in a signed, amended complaint.
Failure to file a signed complaint and/or failure to either pay the filing fee or move to proceed IFP by March 12, 2018 will result in a recommendation that the complaint be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b).
Jackson is also CAUTIONED that, as the Prison Litigation Reform Act (the “PLRA”) applies to this civil action, under the PLRA, “[a] prisoner proceeding IFP in the district court is obligated to pay the full filing fee upon the filing of a complaint. [28 U.S.C.] § 1915(b)(1). No. relief from an order directing payment of the filing fee should be granted for a voluntary dismissal.” Hatchet v. Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (per curiam) (citing Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997)); see, e.g., Bays v. United States, No. 3:15-cv-1824-B-BN, 2015 WL 4930913 (N.D. Tex. Aug. 18, 2015).

Dkt. No. 4.

         It is now more than one month past the deadline for Jackson to respond to the NOD - and it is more than two months since he filed this action - and Jackson has yet to comply with the Court's order or otherwise contact the Court.

         Legal ...


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