United States District Court, W.D. Texas, Austin Division
ALDOE L. FOSTER #1182920
ANGIE McCOWN, Director Victim Services Division
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE UNITED STATES MAGISTRATE JUDGE.
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. §636(b) and
Rule 1(f) of Appendix C of the Local Court 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.
the Court is Plaintiff's complaint. Plaintiff, proceeding
pro se, has been granted leave to proceed in forma pauperis.
OF THE CASE
time he filed his complaint pursuant to 42 U.S.C. §
1983, Plaintiff was confined in the Michael Unit of the Texas
Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”). He states he worked in a job
program at TDCJ from December 6, 2006 to March 29, 2009.
During this time, Plaintiff claims deductions from his
paycheck were taken for his room and board and for crime
victim services in the amount of $15, 000.00. Plaintiff
contends the deductions were fraudulent. He seeks the return
of his money plus interest. He sues the Director of the
Victim Services Division, Angie McCown.
Standard Under 28 U.S.C. § 1915(e)
forma pauperis proceeding may be dismissed sua sponte under
28 U.S.C. § 1915(e) if the court determines the
complaint is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief
against a defendant who is immune from suit. A dismissal for
frivolousness or maliciousness may occur at any time, before
or after service of process and before or after the
defendant's answer. Green v. McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986).
reviewing a plaintiff's complaint, the court must
construe plaintiff's allegations as liberally as
possible. Haines v. Kerner, 404 U.S. 519 (1972).
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).
Eleventh Amendment Immunity
extent Defendant McCown is sued in her official capacity for
monetary damages, Defendant is immune from suit under the
Eleventh Amendment because such an action is the same as a
suit against the sovereign. Pennhurst State School Hosp.
v. Halderman, 465 U.S. 89 (1984). The Eleventh Amendment
generally divests federal courts of jurisdiction to entertain
suits directed against states. Port Auth. Trans-Hudson v.
Feeney, 495 U.S. 299, 304 (1990). The Eleventh Amendment
may not be evaded by suing state agencies or state employees
in their official capacity because such an indirect pleading
remains in essence a claim upon the state treasury. Green
v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir.
Statute of Limitations
is no federal statute of limitations for § 1983 actions.
Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5
(5th Cir. 1995); Henson-El v. Rogers, 923 F.2d 51,
52 (5th Cir. 1991), cert. denied, 501 U.S. 1235
(1991). Therefore, the Supreme Court has directed federal
courts to borrow the forum state's general personal
injury limitations period. Owens v. Okure, 488 U.S.
235, 249-50, (1989). In Texas, the applicable limitations
period is two years. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(a) (Vernon 1986)). Nevertheless, federal
law determines when a § 1983 cause of action accrues.
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir .