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Silver v. Bemporad

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

April 18, 2019




         On this date, the Court considered the Report and Recommendations of the United States Magistrate Judge (docket no. 12). Because Plaintiff Frederick Omoyuma Silver is proceeding in forma pauperis (IFP), the case was automatically referred to the Magistrate Judge, and the Magistrate Judge screened Silver's Complaint pursuant to 28 U.S.C. § 636(b) and the docket-management order entered by this Court on September 29, 2017. That order provides that all cases in which a plaintiff seeks to proceed IFP shall be automatically referred to a Magistrate Judge for disposition of the application to proceed IFP and for a prompt recommendation if it appears the case should be dismissed pursuant to 28 U.S.C. § 1915(e).

         After screening Silver's Complaint, the Magistrate Judge recommends that the Court dismiss the case as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §1915(e). The Magistrate Judge further recommends classifying Silver as a vexacious litigant and issuing a pre-filing injunction and a warning that financial sanctions may be imposed for further frivolous filings in any new or pending case. Plaintiff has responded to the Report and Recommendation by claiming it is void on its face.


         Construing Silver's response as objections, the Court will conduct a de novo review. Silver filed this action on March 19, 2019, asserting claims against Magistrate Judge Henry Bemporad and the Administrative Office of the United States Courts as his employer. Silver alleges that Judge Bemporad inaccurately described certain facts in his previous case, Silver v. Perez, et al, No. 5-18-CV-1307-FB (W.D. Tex.), which Silver contends caused the District Judge to dismiss the litigation. Plaintiff objects to having his case screened under 28 U.S.C. § 1915(e) because he is not a prisoner and contends that Magistrate Judge Farrer “did not even state if he is practicing law from the bench and acting as the defense attorney for the defendant.” Docket no. 13. However, Plaintiffs objections to the screening and recommendation process have no merit.

         Section 1915(a) of Title 28 enables an indigent person to bring an IFP action in federal court without paying costs, but section 1915(e)(2) prevents abuse of the privilege by authorizing the Court to dismiss the case if the allegation of poverty is untrue or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(a), (e)(2). A district court is vested with especially broad discretion in determining whether a dismissal under § 1915(e)(2)(B)(i) for frivolousness is warranted, and dismissal is appropriate where the complaint has no realistic chance of ultimate success. Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988); George v. King, 837 F.3d 705, 707 (5th Cir. 1988). In determining whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii), the Court applies the same standards governing dismissals under Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011); Bell Atl Corp. v. Twombly, 550 U.S. 544 (2007).

         Section 1915(e)(2) provides that “the court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2) (emphasis added); Lewis v. Sec'y of Pub. Safety & Corr., 508 Fed.Appx. 341, 343 (5th Cir. 2013). A dismissal “at any time” includes at the initiation of the action, before the defendant has appeared. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). Further, the duty and power to review and dismiss IFP proceedings under § 1915(e) is not limited to prisoner litigation. See, e.g., Burse v. Sullivan, 980 F.2d 1444 (5th Cir. 1992) (social security appeal); see also Haqq v. Tex. Dept. of Human Servs, No. EP-07-CA-0156-FM, 2007 WL 1958611, at *1 (W.D. Tex. June 29, 2007) (“Section 1915(e)(2)(B) applies to both prisoner and non-prisoner in forma pauperis cases.”).

         Thus, screening a non-prisoner IFP complaint to determine whether it is frivolous or fails to state a claim is sanctioned by § 1915. Further, pursuant to this Court's standing order, the motion to proceed IFP and accompanying screening were automatically referred to Magistrate Judge Farrer. Thus, Plaintiffs assertion that Judge Farrer's Report and Recommendation is void is baseless. Although Plaintiff correctly asserts that he is entitled to a final disposition by an Article III Judge, a Magistrate Judge has authority to conduct the screening and make a recommendation thereon to the District Judge. That is what has occurred in this case.

         Turning to the merits of Plaintiff s claims in this action, Plaintiff asserts that Magistrate Judge Henry Bemporad misrepresented facts and should have recused himself in Silver's prior litigation. He asserts a claim for “Malice and Malicious, ” asserting that Judge Bemporad acted with clear malice and malicious intent while stating inaccurate information to District Judge Fred Biery, a claim for “Fraud Upon the Court” based on Judge Bemporad's failure to recuse, and a claim under the Federal Tort Claims Act (FTCA).

         The Report and Recommendation correctly notes that Magistrate Judge Bemporad has absolute judicial immunity for the actions of which Silver complains, and that he had jurisdiction to conduct the proceedings in Silver's case pursuant to Judge Biery's referral and applicable statutes. See 28 U.S.C. § 636. Although Silver did not consent to Magistrate Judge jurisdiction, Judge Bemporad did not issue any final orders in his case, and had statutory authority to issue the Report and Recommendations to Judge Biery. District Judge Biery, not Magistrate Judge Bemporad, issued the dispositive rulings on Silver's claims. Further, Judge Biery analyzed the issue of recusal and found that Judge Bemporad did not err in denying Silver's motion to recuse. Silver's remedy for his disagreement with these rulings is by appeal. Thus, the Court finds Plaintiff's claims against Magistrate Judge Bemporad to be frivolous.

         Silver's claims against the Administrative Office (AO) are also frivolous, as Silver fails to allege any facts establishing possible liability on the part of the AO. Further, the AO would enjoy sovereign immunity, and to the extent Plaintiff is pursuing a claim against the AO under the FTCA, Plaintiff fails to allege that he has exhausted administrative remedies under the FTCA, a jurisdictional prerequisite to suit under the FTCA.

         Plaintiff's claims against Judge Bemporad and the AO are frivolous and fail to state a claim for relief. The Court DISMISSES Plaintiff's claims pursuant to 28 U.S.C. §1915(e).


         The Court next considers the recommendation to classify Silver as a vexatious litigant and to issue a pre-filing injunction and a monetary sanction warning. The Report and Recommendation details Plaintiff's litigation history in this Court, noting that he has filed six cases in the past few years, all of which have been dismissed at the pleadings stage and that, in each case, Silver engaged in frivolous ...

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