United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
MOTION TO PROCEED 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 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.
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).