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Thomas v. J.L. Culpepper

United States District Court, E.D. Texas, Sherman Division

September 20, 2019

KELLY THOMAS
v.
J.L. CULPEPPER, ET AL.

          Nowak, Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the reports of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On July 29, 2019, the report of the Magistrate Judge (Dkt. #46) was entered containing proposed findings of fact and recommendations that Plaintiff’s “Substitute Motion for Default Judgment, Hearing by Court Judge Requested with Exhibits” (“Motion for Default Judgment”) (Dkt. #30) be denied and Defendants’ Motion to Vacate Default Judgment and Motion to Dismiss (Dkt. #28) be granted. On July 31, 2019, a second report of the Magistrate Judge (Dkt. #47) was entered containing proposed findings of fact and recommendations that Defendants’ Motion for Order Determining Plaintiff a Vexatious Litigant & Requesting Security (Dkt. #29) be granted, in part, and further ordered that “Plaintiff’s Verified Notice in Objection to Defendent’s [sic] Motion for Order Determining Her to be a Vexatious Litigant and Their Request for Security. Plainitff’s [sic] Third Motion for Appointment of Counsel, Court Hearing Requested” (Dkt. #34) be denied. Having received the report of the Magistrate Judge, having considered Plaintiff’s objections (Dkts. #51; #52, #53), [1] and request to transfer (Dkt. #50), having considered all other relevant filings, [2] and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge’s reports should be adopted.

         RELEVANT PROCEDURAL HISTORY

         Plaintiff filed the instant suit on November 14, 2018 (Dkt. #1), and her Amended Complaint, the live pleading in this case, on December 20, 2018 (Dkt. #7). Defendant Gerald Turnham was served on January 11, 2019 (Dkt. #20). Defendant Turnham did not answer or otherwise respond by February 1, 2019 and Plaintiff requested that the clerk enter default against Defendant Turnham (Dkt. #21). The Clerk entered default as to Defendant Turnham on February 8, 2019 (Dkt. #22). Thereafter, on February 25, 2019, Defendants J.L. Culpepper and Culpepper Plumbing and Air Conditioning Inc. were served on February 11, 2019 (Dkts. #25; #26). Defendant Carl Pugliese was served on February 13, 2019 (Dkt. #27). Defendants Culpepper Plumbing and Air Conditioning, Inc., J.L. Culpepper, Steve Culpepper (deceased), Gerald Turnham, and Carl Pugliese jointly filed their “Motion to Vacate Default Judgment and Motion to Dismiss” (Dkt. #28) and “Motion for Order Determining Plaintiff a Vexatious Litigant & Requesting Security” (Dkt. #29). After the filing of the Motion to Dismiss, Plaintiff moved for default judgment (Dkt. #30). On July 29, 2019, the Magistrate Judge entered a report and recommendation (Dkt. #46) recommending that Plaintiff’s Motion for Default Judgment (Dkt. #30) be denied and Defendants’ Motion to Vacate Default Judgment and Motion to Dismiss (Dkt. #28) be granted. On July 31, 2019, the Magistrate Judge entered a second report and recommendation (Dkt. #47) recommending that Defendants’ Motion for Order Determining Plaintiff a Vexatious Litigant & Requesting Security (Dkt. #29) be granted and further ordering that “Plaintiff’s Verified Notice in Objection to Defendent’s [sic] Motion for Order Determining Her to be a Vexatious Litigant and Their Request for Security. Plainitff’s [sic] Third Motion for Appointment of Counsel, Court Hearing Requested” (Dkt. #34) be denied.

         OBJECTIONS TO REPORT AND RECOMMENDATION

         A party who files timely written objections to a magistrate judge’s report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must specifically identify portions of the report and the basis for those objections. Fed.R.Civ.P. 72(b); see also Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (explaining that if the party fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.). In other words, a party objecting to a magistrate judge’s report must specifically identify those findings to which he or she objects. Moreover, the District Court need not consider frivolous, conclusory, or general objections. Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

         Plaintiff makes numerous objections to both reports (Dkts. #51, #52, #53), including specifically that: (1) Defendants’ counsel are not properly before the Court (Dkts. #51 at p. 2; #52 at p. 4); (2) there is no order referring this case to the Magistrate Judge and thus she had no authority to enter her reports (Dkts. #51 at p. 2; #52 at p. 4); (3) the Magistrate Judge’s recital of the facts and/or Plaintiff’s allegations is untrue (Dkts. #51 at p. 2; #52 at p. 4) (4) the Magistrate Judge refused to set the case for hearing (Dkts. #51 at pp. 3, 12; #52 at p. 5); (5) the Clerks’ Office (and the Court) “aided Defendants purposefully and prejudicially against the Plaintiff” (Dkt. #51 at pp. 6–9); (6) the Magistrate Judge erred in finding this Court does not have jurisdiction (Dkt. #51 at pp. 5, 10–12); (7) Defendants did not answer Plaintiff’s Amended Complaint and the Magistrate Judge ignored the standard in Rule 12 of the Federal Rules of Civil Procedure (Dkt. #51 at pp. 12– 13); and (8) the Magistrate Judge improperly relied on Justice of the Peace Court cases, non-suits, and dismissals in determining a limited pre-filing injunction should be imposed (Dkt. #52 at p. 3).

         Defendants’ Counsel

         Plaintiff argues Defendants’ counsel, Daniel Jose Paret and Gregory J. Sawko are not properly before the Court and have no standing to making filings in this matter (Dkts. #51 at p. 2; #52 at p. 4). Both Mr. Paret and Mr. Sawko are admitted to practice before the Eastern District of Texas and are in good standing. Plaintiff’s objection is overruled.

         Referral to Magistrate Judge

         Plaintiff also challenges the authority of the Magistrate Judge; Plaintiff asserts that “there is no record of a document showing designation, or referral, by either Judge Mazzant, Justice Gilstrap, or consent by either Party, on file” (Dkts. #51 at p. 2; #52 at p. 4). “[A full Article III] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except [certain dispositive motions]” and “may also designate a magistrate judge to ... submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any [of those excepted] motion[s].” 28 U.S.C. § 636(b)(1)(A)–(B). “Additionally, the Eastern District of Texas’s Local Rules also provide district judges wide latitude in referring matters and motions for a magistrate judge’s review.” Robinson v. Texas, No. 4:18-CV-66, 2018 WL 4057192, at *2 (E.D. Tex. Aug. 27, 2018) (Mazzant, J.) (citing E.D. Tex. Local Civil Rule 72(d)). Pursuant to standing order, this case was referred to the Magistrate Judge for all pretrial proceedings. To the extent Plaintiff objects that she did not consent to the Magistrate Judge, no such consent was needed as the referral was initiated pursuant to 28 U.S.C. § 636(b). The Magistrate Judge acted within the bounds of statutory authority in making recommendations to the District Court. See Lowe v. Dollison, No. 6:11-cv-108, 2012 WL 1555446, at *2 (E.D. Tex. Mar. 2, 2012). Plaintiff’s objection is overruled.

         Recitation of Facts and/or Plaintiff’s Allegations

         Plaintiff further contends that the Magistrate Judge’s recitation of the facts and/or Plaintiff’s allegations is untrue. In pertinent part, Plaintiff argues that the Magistrate Judge “did not address the congressional acts shown to this court in support of Plaintiff’s standing; but simply wrote ‘United States’” (Dkt. #51 at p. 2) and improperly relied on the Defendants’ proposed order (Dkt. #29-13) as it related to Defendants’ Motion for Sanctions (Dkts. #51 at p. 2; #52 at p. 4). In making her objection, Plaintiff directs the Court’s attention to various pages of the reports (Dkts. #51 at p. 2; #52 at p. 4). The Magistrate Judge appropriately summarized the relevant factual background of this case, and properly addressed the Court’s jurisdiction, as discussed more fully infra. Moreover, upon review of the Magistrate Judge’s report, contrary to Plaintiff’s assertions, the Court finds no citations or references to Defendants’ proposed order (Dkt. #29-13). With respect to the issue of sanctions, to the extent Plaintiff takes issue with the report’s consideration of the twelve docket sheets provided by Defendants establishing the multitude of other cases filed by Plaintiff, the Court may take notice of public records, which includes records of Plaintiff’s prior litigation. See In re Deepwater Horizon, 934 F.3d 434, 440 (5th Cir. 2019) (“We may take judicial notice of prior court proceedings as matters of public record.”). Plaintiff’s objection is overruled.

         Request for Hearing

         Plaintiff argues that “the Magistrate purposely neglected to hear the case” and “[t]he magistrate would not allow Plaintiff to have a hearing although requested in dkt 30, 38 and Dismissed her case and named her Vexatious litigant on Hearsay without a hearing in contradictions to Article VIII” (Dkt. #51 at p. 3). Plaintiff has provided no authority that she was entitled to a hearing on her Motion for Default Judgment (Dkts. #30; #38) or any other motion and/or request. Indeed, the Fifth Circuit has specifically indicated that the Federal Rule of Civil Procedure 55-upon which Plaintiff’s Motion was based-does not require an evidentiary hearing. James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993). Plaintiff’s objection is overruled.

         Allegations Against ...


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