DeGarza v. Montejano

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE.

         Before this Court are Andre DeGarza's (“Plaintiff”) Application to Proceed In Forma Pauperis (Dkt. No. 2); Plaintiff's Complaint (Dkt. No. 1); and Plaintiff's Motion to Dismiss Violation #7359002 due to an Excessive Use of Force (Dkt. No. 4). 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), 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

         According to his Complaint, Plaintiff Andre DeGarza (“Plaintiff”) is an attorney and Veteran of the United States Air Force who has been receiving treatment from the United States Department of Veterans Affairs (“VA”) for the last 20 years. Plaintiff alleges that he visited the Austin VA Outpatient Clinic on August 14, 2019, because he had an appointment with Dr. Jenna Felici, M.D., a VA psychiatrist. Plaintiff alleges that he asked Dr. Felici to refill his prescription for Ritalin, but instead, she read his medical file and asked him some questions. Plaintiff was not pleased that Dr. Felici did not immediately refill his prescription and asked her to “call the police because I wanted them there in the session.” Dkt. No. 1 at ¶ 8. Dr. Felici complied with Plaintiff's request and called VA Officers Joshua Seeback and Hugo Montejano to come to her office. Plaintiff alleges that after he reached for his briefcase, Officers Seeback and Montejano violently shoved him from behind, slammed his head on Dr. Felici's desk, handcuffed him and placed him in the Outpatient Clinic holding cell. Plaintiff alleges that he sustained damages including “pain, humiliation, depression, and fear of going to the VA.” Id. at ¶ 9.

         On October 17, 2019, Plaintiff filed an Application to Proceed In Forma Pauperis asking that he proceed in this case without having to pay the filing fee. Plaintiff's Complaint alleges (1) an excessive force claim against Officers Montejano and Seebeck under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”); (2) a Federal Tort Claims Act (“FTCA”) claim against Officers Montejano and Seebeck for battery and assault; and (3) a FTCA claim against Dr. Felici for negligent infliction of emotional distress.

         II. MOTION TO PROCEED 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 recommends that Plaintiff's claims 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 ...