United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are: Kenneth Alexander's
(“Plaintiff”) Motion to Proceed In Forma Pauperis
(Dkt. No. 2); and Plaintiff's Complaint (Dkt. No. 1). On
July 18, 2019, the District Court referred this case to the
undersigned Magistrate Judge for disposition and Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1),
Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C
of the Local Rules of the United States District Court for
the Western District of Texas (“Local Rules”).
requests that he be permitted to file this lawsuit without
paying the filing fee. Plaintiff's Complaint alleges that
the Texas State Board of Medical Examiners, the Texas State
Board of Pharmacy, and the Texas State Board of Nursing
(collectively, “Defendants”) “tampered
with” and “cover[ed] up” records showing
that the physicians, nurses and pharmacists who testified
against him in a criminal matter in Smith County, Texas, lied
and provided false statements against Plaintiff. See Dkt. No.
1 at p. 4. Apparently, Plaintiff was arrested after illegally
obtaining a prescription for hydrocodone in Smith County.
Plaintiff has filed three previous lawsuits based on this
arrest alleging that the doctors, nurses and pharmacists
involved in the case lied to the police and County that he
illegally obtained the hydrocodone. See Alexander v. Patrick,
6:18-CV-284-RWS (E.D. Tex. Oct. 2, 2018) (dismissing case for
lack of jurisdiction because Plaintiff's allegations that
medical personnel lied about a prescription for hydrocodone
failed to demonstrate federal jurisdiction); Alexander v.
Patrick, 6:18-CV-285-RWS (E.D. Tex. Aug. 13, 2018) (same);
Alexander v. Patrick, 6:17-CV-379-RWS (E.D. Tex. Oct. 24,
2017) (granting plaintiff's voluntary motion to dismiss).
In this case, Plaintiff alleges that the Defendants also lied
and covered up all records showing that the physicians,
nurses, and pharmacists lied in his criminal case. Plaintiff
seeks $10 million in regular damages and $100 million in
Plaintiff originally filed this lawsuit in the Eastern
District of Texas, that District transferred the case to
instant District on April 29, 2019. See Dkt. No. 4.
MOTION FOR IN FORMA PAUPERIS
reviewing Petitioner's Application to Proceed in District
Court Without Prepaying Fees or Costs and financial affidavit
in support, the Court finds that he is indigent. Accordingly,
the Court HEREBY GRANTS Plaintiff in
forma pauperis status and ORDERS his
Complaint to 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).
Plaintiff 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. 1994).
stated below, this Court has conducted a § 1915(e)
review of the claims made in the Complaint and is
recommending that Plaintiff's claims should be dismissed
under 28 U.S.C. § 1915(e). Therefore, service on 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
on the Defendants.
SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Standard of Review
Plaintiff 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).
se 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).
Plaintiff's Complaint should be dismissed ...