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Hull v. Whitaker

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

May 29, 2019

JOHN CHRISTOPHER HULL, Plaintiff,
v.
MATTHEW G. WHITAKER, UNITED STATES OF AMERICA, ACTING U.S. ATTORNEY GENERAL; AND KEN PAXTON, STATE OF TEXAS, TEXAS ATTORNEY GENERAL; Defendants.

          Honorable Orlando Garcia Chief United States District Judge.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE.

          RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation concerns the Motion to Dismiss filed by Defendants the State of Texas and Texas Attorney General Ken Paxton (“Texas Defendants”), see Dkt. No. 13, and Plaintiff John Christopher Hull's failure to timely and properly serve Defendants the United States of America and Matthew G. Whitaker, former Acting Attorney General (“Federal Defendants”). The District Court referred this case to the undersigned pursuant to Western District of Texas Local Rule CV-72 and Appendix C. See Dkt. No. 6. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).

         For the reasons set forth below, the Federal Defendants should be dismissed for lack of proper service and the Texas Defendants' Motion to Dismiss, Dkt. No. 13, should be GRANTED. Plaintiff Hull does not have standing to pursue this action and, regardless, sovereign immunity bars Hull's claims. Accordingly, this case should be DISMISSED WITHOUT PREJUDICE and the various motions to join filed in this case should be DISMISSED AS MOOT. Alternatively, the motions to join should be denied for failing to satisfy the requirements for intervention set forth in Federal Rule of Civil Procedure 24.

         I. Factual and Procedural Background

         Pro se Plaintiff John Christopher Hull initiated this action on January 11, 2019 against the United States of America and previous Acting Attorney General Matthew G. Whitaker (referred to collectively as the “Federal Defendants”) as well as the State of Texas and Texas Attorney General Ken Paxton (collectively, the “Texas Defendants”). Hull takes issue with state and federal policies and laws pertaining to opioid pain medications. The Complaint-which is not entirely clear but nonetheless is read liberally in Hull's favor-begins with a history of medical uses of opioids and an overview of various studies related to treatment of chronic-pain patients. Id. at 5-7. Next, the Complaint discusses the history of the Centers for Disease Control (“CDC”) guidelines and other federal policies related to opioid use, which are allegedly out-of-step with current scientific opioid research. See Id. at 7-12, 16-25.

         “Since the publication of the CDC guidelines, ” Hull alleges, the federal government and 37 enumerated states-not including Texas-have implemented “policies and legislative acts” regarding pain medication that allegedly violate the rights of American citizens under the Fourth, Fifth, and Fourteenth Amendments, the “Social Security Act [of] 1935, [t]he Medicare/Medicaid Act [of] 1965, and multiple federal and state antitrust laws.” Id. at 1, 9. Hull also takes issue with prescription-monitoring programs, allegedly enacted by every state save Nebraska, through which medical providers are allegedly coerced into providing sensitive patient data. Id. at 11-12. Hull asks the Court “to end abuses by the Federal and State governments and respective agencies” with respect to pain-medication laws and policies, Id. at 1, 27-28, and to allow “all Americans . . . to join this litigation against the state of TEXAS and the United States of America by submitting a ‘Motion to Join, '” Id. at 26.

         This is one of more than 15 substantially similar-if not effectively identical-cases filed by a pro se plaintiff across the country.[1] Hull's Complaint appears to have been downloaded from a website promoting the repeal of restrictions that have been placed on the prescription and distribution of opioid painkillers. The website encourages others to be “warriors” and file the form complaint in federal court against the federal Government and the state where each individual resides as part of a movement referred to as “Operation Starburst.” See https://sickofsuffering.com/%23starburst-files (last visited May 15, 2019). The website provides step-by-step instructions for filing a complaint and encourages individuals to share the case No. with others who may join the case via a “Class Action Motion.” See id.

         Since Hull's commenced this litigation, 38 motions to join have been filed by various pro se litigants, the majority of whom are not Texas citizens[2] and several of whom it appears have already moved to join cases pending in other jurisdictions.[3] According to the directions attached to the motions to join, individuals are informed that “[t]here is no limit to the No. of #Starburst cases you may petition to join.” Dkt. No. 3 at 3. These motions to join are all materially identical except for the name, address, and signature of the individual filing the motion.[4] Some movants have also included a “story of the[ir] harms & suffering.” See id.

         II. Analysis

         The Federal Defendants should be dismissed for failure to timely and properly effect service. Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Because Hull initiated this action on January 11, 2019, his deadline to properly effect service on the Federal Defendants was April 11, 2019. To date, Hull has failed to do so.

         On February 22, 2019, Hull returned summons allegedly executed on the Federal Defendants. See Dkt. No. 33. But according to the return of service, Hull attempted to personally serve the summons and complaint by mailing them himself to the Federal Defendants. This does not comply with Rule 4, which provides that service of the summons and complaint cannot be effected by a party. See Fed. R. Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a party may serve a summons and complaint.”) (emphasis added). Nor is there any indication in the record that all parties set forth in Rule 4(i) have been served. See Fed. R. Civ. P. 4(1) (“Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.”). The Court has twice advised Hull of his duty to timely and properly serve a copy of the summons along with the complaint on all Defendants in compliance with Rule 4 of the Federal Rules of Civil Procedure and also of the consequences for failing to do so. See Feb. 1, 2019 text order & Dkt. No. 34. Hull has failed to comply with the Court's directives or to show good cause for the failure.[5]Accordingly, dismissal of Defendants the United States of America and Acting U.S. Attorney General Matthew G. Whitaker without prejudice is appropriate under the circumstances. See Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013) (“A litigant's pro se status neither excuses his failure to effect service nor excuses him for lack of knowledge of the Rules of Civil Procedure.”).

         Hull lacks standing to bring his claims against the Texas Defendants. The Court is tasked with evaluating Hull's standing to challenge opioid laws and regulations. See Moody v. Michigan Gaming Control Bd., 847 F.3d 399, 402 (6th Cir. 2017) (“Standing is a threshold issue for bringing a claim in federal court and must be present at the time the complaint is filed.”). Hull's claims are premised on his wife's inability to access opioid pain medication. Hull's claims against the Texas Defendants fall short with respect to constitutional as well as prudential standing considerations.

         Constitutional standing requires an injury in fact, a causal connection between the injury and the complained-of laws, and the potential that the injury could be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Hull alleges generalized and conjectural injuries to a large group of people identified as chronic-pain patients in the United States. Hull lacks standing to bring his claims against the Texas Defendants because the claims do not address any alleged wrong committed by the Texas Defendants or seek redress for any alleged injury possibly traceable to, or redressable by, the Texas Defendants. See id.; see also McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936) (explaining that a plaintiff “must allege in his pleading the facts essential to show jurisdiction” and that “[i]f he fails to make the necessary allegations he has no standing”).

         In his Response to the Texas Defendants' Motion to Dismiss, Hull alleges that his wife has been consistently denied pain medicine that she needs, in alleged contravention of the Fourth, Fifth, and Fourteenth Amendments as well as the Social Security Act, the “International Treaty: Single Convention on Narcotic Drugs, 1961, ” the Medicare/Medicaid Act of 1965, and the “Genocide Convention Implementation Act of 1987 (The Proxmire Act).” Dkt. No. 32 at 6-13. Hull's Response details how his wife's present circumstances have directly affected him emotionally and financially. But even assuming without deciding that such allegations would be sufficient to meet the injury-in-fact requirement, [6] Hull fails to allege any facts explaining how the Texas Defendants play any causal role in his injury or how they could redress Hull's alleged actual or threatened injury.

         To be clear, Hull's Complaint does not mention, let alone invoke, any Texas statutes or regulations. It also does not mention any actions, or even threatened actions, committed by the Texas Defendants. And despite listing in his Complaint “numerous” states that have allegedly implemented unconstitutional policies and legislative acts in connection with opioid regulation, Texas is absent from this list. See Compl. at 9. Instead Hull complains only of federal policies, executive actions, and legislation, which he labels unconstitutional or violative of other federal ...


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