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Alexander v. Texas State Board of Medical Examiners

United States District Court, W.D. Texas, Austin Division

August 12, 2019

KENNY ALEXANDER, Plaintiff
v.
TEXAS STATE BOARD OF MEDICAL EXAMINERS, TEXAS STATE BOARD OF PHARMACY, AND TEXAS STATE BOARD OF NURSING, Defendants

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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”).

         I. GENERAL BACKGROUND

         Plaintiff 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 punitive damages.

         Although 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.

         II. MOTION FOR IN FORMA PAUPERIS

         After 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).

         As 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.

         III. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW

         A. Standard of Review

         Because 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).

         Pro 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).

         B. Plaintiff's Complaint should be dismissed ...


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