United States District Court, W.D. Texas, Austin Division
ORLANDO M. GUTIERREZ
WORKFORCE SOLUTIONS, et al.
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is Orlando M. Gutierrez's Application to
Proceed In Forma Pauperis (Dkt. No. 4) and Financial
Affidavit in Support, along with his Complaint (Dkt. No. 3).
The District Court referred the above-motion 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 Judges.
APPLICATION TO PROCEED IN FORMA PAUPERIS
reviewing Gutierrez's Application to Proceed In Forma
Pauperis, the Court finds that he is indigent. Accordingly,
the Court HEREBY GRANTS Gutierrez 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).
Gutierrez 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 review of the claims
made in Gutierrez'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
Standard of Review
Gutierrez 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).
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).
Section 1983 Claims
is suing Workforce Solutions, Kathryn Noughton identified as
a career counselor at Workforce Solutions, Michael Buford
identified as a Work Program Manager at Workforce Solutions,
and Nora Chopra identified as the Supervisor of Customer
Relations at Workforce Solutions. Gutierrez asserts that his
Eighth and Fourteenth Amendment rights were violated when he
was not afforded sufficient service and information when he
attempted to apply for “tool voucher assistance”
at Workforce Solutions. Gutierrez asserts that these
individuals engaged in a conspiracy to deprive him of his
civil rights and requests ten million dollars in damages.
Claims Against Workforce Solutions
Solutions has sovereign immunity to Gutierrez's claims
because it is performing a state governmental function for
all purposes relevant to this litigation. “The Eleventh
Amendment prohibits a private citizen from bringing suit
against a state in federal court unless the state
consents.” Daigle v. Gulf State Utilities Company,
Local Union No. 2286, et al.,794 F.2d 974, 980 (5th
Cir.), cert. denied, 479 U.S. 1008 (1986). This ...