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Silver v. Bemporad

United States District Court, W.D. Texas, San Antonio Division

April 9, 2019




         To the Honorable United States District Judge Xavier Rodriguez:

         This Report and Recommendation concerns the civil Complaint filed by pro se Plaintiff Frederick Omoyuma Silver. Because Silver is proceeding in forma pauperis (“IFP”), this case was automatically referred to the undersigned upon filing, pursuant to 28 U.S.C. § 636(b) and the docket-management order entered on September 29, 2017 in the San Antonio Division of the Western District of Texas. The undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72, notwithstanding Silver's expressed belief to the contrary. Cf. Dkt. No. 5. Although Silver has not consented to have this case tried before a magistrate judge, a magistrate judge-regardless of the parties' consent-has authority to hear and decide the types of pretrial issues referred here by the District Court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; see also, e.g., Stewart v. Louisiana, 675 Fed.Appx. 493, 494 (5th Cir. Feb. 6, 2017) (per curiam).

         For the reasons discussed below, the undersigned recommends that the District Court Dismiss this case as frivolous and for failure to state a claim on which relief may be granted. Further, a review of the totality of Silver's filings in this case-as well as in seven other cases- reveals that Silver is a vexatious litigant whose frivolous filings pose an unwarranted burden on the Court. Accordingly, the undersigned further recommends that the District Court ENJOIN Silver from filing further lawsuits in this judicial district without prior leave from a district judge of this district. Finally, as two of Silver's cases are currently pending in this district, it is recommended that Silver be WARNED that further frivolous filings in any new or pending case may result in the imposition of monetary sanctions.

         I. Factual and Procedural Background

         Pro se Plaintiff Silver initiated this action on March 19, 2019. He did so seeking to proceed IFP. By and through his civil Complaint, Silver asserts that U.S. Magistrate Judge Henry Bemporad inaccurately described the facts in a previously filed case, styled as Silver v. Perez, et al., No. 5-18-cv-1307-FB (W.D. Tex. filed Dec. 13, 2018), which Silver alleges caused the District Court to dismiss the litigation. In allegedly misrepresenting the facts in his underlying case, Silver baldly asserts-without any supporting facts or basis-that Judge Bemporad “acted in clear malice and malicious intent.” He further speculates that Judge Bemporad committed a “fraud upon the court” by “fail[ing] to recuse himself from the case after being asked to recuse himself, ” “fail[ing] to disclose any dealings with the Attorney of record for the defendants, ” and making “[i]naccurate statements of the facts of [the underlying case] and acting where Henry J. Bemporad did not have jurisdiction and or consent to ACT.” Silver brings the following “claims” against Defendants Judge Bemporad and the Administrative Office of the United States Courts (the “AO”): (1) malice and malicious; (2) fraud upon the court; and (3) violations of the Federal Tort Claims Act, 28 U.S.C. § § 2671-2680. Silver seeks monetary damages in the amount of $1 million.

         On April 1, the undersigned granted Silver's IFP Application but warned Silver that, as pled, Silver failed to state a non-frivolous claim upon which any relief may be granted. See Dkt. No. 8. Mindful of the obligation to liberally construe a pro se plaintiff's complaint, however, the undersigned permitted Silver an opportunity to show cause as to why his Complaint should not be dismissed. He was therefore afforded an opportunity to file an amended complaint or a brief addressing the specific pleading deficiencies pointed out in the April 1 Order. That same Order noted for the record that this is very likely Silver's sixth frivolous case filed in the past few years. See Id. at 8-9. Accordingly, the Order warned Silver that “the pursuit of additional frivolous litigation-including this action, if it continues on its present trajectory-is very likely to result in the imposition of sanctions, including but not limited to monetary sanctions or a pre-filing injunction.” Id. (emphasis in original).

         On April 2, Silver filed a Response to the undersigned's April 1 Show Cause Order. See Dkt. No. 11. the Response appears to argue that the undersigned's recusal is warranted here because the undersigned “has not stated on the Court Record if he is acting as the defense attorney for the defendants on this case.” Id. at 2. Silver “then directs” the undersigned “to study the definitions of a “driver” and “to study the Constitutional Rights that Frederick Omoyuma Silver has.” Id. Other than this cursory, unhelpful response, Silver asserts that he “would not be responding to any of the Order to show Cause from [the undersigned] as this Order is VOID on its face.” Id. (emphasis in original). Silver “demand[s] that the court issue a summons and it be served on the listed defendants to the well pleaded Complaint and Claims against them in accordance to the Federal [R]ules of Civil [P]rocedure which clearly states Complaint upon which relief must be granted.” He also “place[s] a Demand on [the undersigned] to produce a copy of the Oath of Office which he took before performing the duties of a U.S. Magistrate Judge.” Silver concludes his Response by asserting that “[t]he Court should not use treat [sic] of sanctions and fees to intimidate, or denial [sic] me ‘Frederick Omoyuma Silver' Justice through the public court system.” Id. This case is frivolous, and Silver's actions-notwithstanding his pro se status-are sanctionable.

         I. Legal Standards

         Pursuant to 28 U.S.C. § 1915(e), the Court is required to screen any civil complaint filed by a party proceeding IFP and in doing so to determine whether the claims presented: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant enjoying immunity from such relief. See 28 U.S.C. § 1915(e)(2)(B). An action is frivolous where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

         “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quotations omitted). A complaint can be factually frivolous if “the facts alleged are ‘fantastic or delusional scenarios.'” Eason v. Thaler, 14 F.3d 8, 9 n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327-28). In evaluating whether a complaint states a claim under § 1915(e)(2)(B), this Court applies the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011).

         To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)). These factual allegations need not be highly detailed but “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A conclusory complaint- one that fails to state material facts or merely recites the elements of a cause of action-may be dismissed for failure to state a claim. See Id. at 555-56.

         “[A] district court is ‘vested with especially broad discretion' in determining whether . . . a dismissal [under § 1915(e)(2)(B)(i)] is warranted.” Id. (quotation marks omitted). “A district court may dismiss an IFP proceeding for frivolousness or maliciousness at any time, before or after service of process and ...

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