United States District Court, W.D. Texas, Austin Division
ORLANDO M. GUTIERREZ
NORDSTROM DOMAIN, 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
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 Nordstrom Domain, its Store Manager, Floor Lead, and
Mike identified as a Supervisor. Gutierrez asserts that
Nordstrom and its employees conspired to violate his civil
rights when he was terminated from his part time employment
at Nordstrom. Specifically, Gutierrez contends that the job
offer he received was to be for at least two days, but that
he only worked 2.8 hours before being asked to leave.
alleges Section 1983 claims against Nordstrom and its
employees. “To state a claim under § 1983, a
plaintiff must (1) allege a violation of rights 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.” Leffall v.
Dall. Indep. Sch. Dist.,28 F.3d 521, 525 (5th Cir.
1994). Thus, to state a claim under § 1983, Gutierrez
must allege a state action. 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 § 1983 therefore requires that the
defendants be acting jointly with at least one state actor.