United States District Court, W.D. Texas, Austin Division
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is Edmund Bryan Heimlich's Complaint (Dkt. No.
1) and Application to Proceed In Forma Pauperis
(Dkt. No. 2). 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 Heimlich's Application to Proceed In Forma
Pauperis, the Court finds that he is indigent.
Accordingly, the Court HEREBY GRANTS
Heimlich's 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). Heimlich 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.
stated below, this Court has conducted a review of the claims
made in Heimlich'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
Heimlich 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).
is suing the State of Texas “by and through”
Texas Senator Juan Hinojosa, requesting the Court to Order
Juan Hinojosa to amend Senate Bill 2080 to include a line
item appropriating $1, 593, 000 for the payment of
restitution allegedly due to Heimlich. Heimlich asserts he
has a Final Judgment entered by a state court district judge
on October 3, 2005, in the principal amount of $660, 605.74
due to him from the State of Texas (presumably the difference
between this amount and the larger amount addressed in the
complaint is attributable to post-judgment interest).
Heimlich seems to assert that the failure to appropriate this
money constitutes a violation of the Takings Clause of the
United States Constitution. It also appears he asserts a Due
Process violation based upon the state courts'
application of the statute in his case. Heimlich maintains he
is entitled to injunctive relief as he will suffer
irreparable injury if he does not receive this money, as he
is older, unemployed, and has not worked because he has spent
his energy attempting to collect from the State of Texas. He
also requests habeas corpus relief.
the Eleventh Amendment, a state may not be sued in federal
court unless it consents to suit or unless Congress, pursuant
to a valid exercise of its power, abrogates the state's
immunity. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99-100 (1984). Eleventh
Amendment immunity extends to state agencies and to state
officials if the relief sought would operate against the
state. Id. at 101. Heimlich sues the State of Texas
and Texas Senator Juan Hinojosa in his official capacity.
Hinojosa is entitled to Eleventh Amendment immunity from the
official capacity claim because “the state is the real,
substantial party in interest.” Pennhurst, 465
U.S. at 101; Union Pac. R. Co. v. Louisiana Pub. Serv.
Comm'n, 662 F.3d 336, 340 n.3 (5th Cir. 2011) (per
curiam). Accordingly, absent Texas's consent,
Congress's abrogation of the immunity, or the suit
falling within the Ex Parte Young exception,
Heimlich's suit is barred by the Eleventh Amendment.
Ex Parte Young exception applies to cases seeking
prospective injunctive or declaratory relief against a state
official. Ex Parte Young, 209 U.S. 123 (1908).
Heimlich attempts to posit his suit as one seeking
prospective injunctive relief, contending that he is asking
the Court to enter an affirmative injunction requiring the
Texas Legislature to pass a particular version of the SB
2080, which is an appropriations statute. Ex Parte
Young only permits “prospective injunctive relief
to prevent a continuing violation of federal law”
against state officers in their official capacities and does
not allow damages or other retrospective relief. Green v.
Mansour, 474 U.S. 64, 68 (1985). While Heimlich purports
to only request injunctive relief, in reality he is
requesting that the Court order the State to pay him monetary
damages. Thus, the exception to Eleventh Amendment immunity
under E ...