United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
UJEREMY D. KERNODLE, UNITED STATES DISTRICT JUDGE
above entitled and numbered civil action was referred to
United States Magistrate Judge John D. Love pursuant to 28
U.S.C. § 636. Docket No. 5. Plaintiff Kendra Hankerd
(“Plaintiff”), proceeding pro se, filed a
Complaint on May 6, 2019, against Defendants the State of
Tennessee and the Federal Bureau of Investigations
(collectively referred to as “Defendants”).
Docket No. 2. Plaintiff has also sought leave to proceed
in forma pauperis. Docket No. 3. On May 9, 2019, the
Magistrate Judge issued his Report and Recommendation (Docket
No. 6), recommending that this action be dismissed with
prejudice as frivolous. On May 28, 2019, Plaintiff filed
initial Objections to the Report and Recommendation
requesting an extension of time in order to seek advice of
counsel. Docket No. 7 at 3-4. The Court granted Plaintiff an
extension until June 30, 2019, to seek counsel for this case.
Docket No. 9. No. counsel for Plaintiff ever entered an
appearance in this case, however, and Plaintiff filed further
Objections on June 20, 2019. Docket 10.
Court reviews de novo the portions of the Magistrate
Judge's findings to which objections have been raised. 28
U.S.C. § 636(b)(1). Having reviewed the Magistrate
Judge's findings and Plaintiff's objections, the
Court OVERRULES Plaintiff's Objections
(Docket Nos. 7 & 10) and ADOPTS the
Magistrate Judge's Report and Recommendation (Docket No.
6) as the findings of the Court. As the Magistrate Judge
found, dismissal is appropriate pursuant to 28 U.S.C. §
1915(e)(2)(B) because Plaintiff's claims are frivolous.
Court reviews objected-to portions of the Magistrate
Judge's Report and Recommendation de novo. See
Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1) (“A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
and recommendations to which objection is made.”). A
court conducting a de novo review examines the entire record
and makes an independent assessment under the law.
Douglass v. United States Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superseded by
statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen
Complaint, Plaintiff makes a variety of allegations. Docket
No. 2. As an initial matter, Plaintiff claims that her cause
of action arises pursuant to exceptions to tort law under 28
U.S.C. § 2690(a)(h), which the Court understands to be
28 U.S.C. § 2680(a) and 28 U.S.C. § 2680(h). Docket
No. 2, at 1-2. Plaintiff also pleads eight specific causes of
actions: (1) illegal arrest; (2) electronic harassment; (3)
negligence/wrongful act; (4) federal civil rights; (5) data
breach; (6) abuse of authority; (7) violation of humans; and
(8) violation of amendments. Id. at 42-53. Plaintiff
factually alleges that her electronic accounts and devices
have been hacked and she has received messages indicating she
has been stalked. Id. at 28-40. Moreover, Plaintiff
claims that she has made reports regarding the stalking and
hacking to both the Federal Bureau of Investigations (FBI)
and Tennessee law enforcement. Id. Many of
Plaintiff's allegations overlap with her claims in No.
6:18-cv-00204-JDK-JDL and No. 6:19-cv-00063-JDK-JDL, both of
which have been dismissed by this Court. After reviewing
Plaintiff's pleading, the Magistrate Judge recommended
this action be dismissed as frivolous.
reviewing Plaintiff's objections and the relevant
pleadings and filings in this case, the Court agrees with the
Magistrate Judge's determination that this action is
frivolous. Accordingly, the Count finds that the Magistrate
Judge appropriately determined Plaintiff's claims to be
frivolous and recommended dismissal of this action.
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
made a de novo review of the objected-to portions of the
Report and Recommendation (Docket No. 6), the Court finds,
for the reasons explained above, that Plaintiff's
Objections (Docket Nos. 7 & 10) should be
OVERRULED and the Magistrate Judge's
Report (Docket No. 6) should be ADOPTED.
This action is DISMISSED WITH PREJUDICE as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). As the
Magistrate Judge noted, a case dismissed as frivolous or
malicious under the in forma pauperis statute should
be deemed to be dismissed with prejudice. Marts v.
Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc).
Furthermore, the Court ORDERS that all other
pending motions be DENIED as
MOOT. Finally, the Court notes that this is
the third lawsuit Plaintiff has filed relating to these
claims, which have all been dismissed by this Court.
Plaintiff is warned that if she continues to file frivolous
actions in this Court, filing restrictions may be imposed. To
the extent Plaintiff disagrees with the Court's
determination or believes the Court committed error in this
case, or any of her prior cases, filing additional lawsuits
based on the same claims is not the appropriate remedy.
Instead Plaintiff may appeal the Final Judgment of this Court
to the United States Court of Appeals for the Fifth Circuit.