United States District Court, E.D. Texas, Sherman Division
GERALD DEMARSH, SR.
STATE OF TEXAS, ET AL.
MEMORANDUM ADOPTING IN PART REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report 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 31, 2019, the report of the Magistrate Judge
(Dkt. #9) was entered containing proposed findings of fact
and recommendations that Plaintiff Gerald DeMarsh, Sr.'s
claims against Defendants State of Texas, Denton County,
Texas, and Judge Crouch (Dkt. #1) be dismissed. Having
received the report of the United States Magistrate Judge,
having considered Plaintiff's formal and construed
Objections (Dkts. #11; #12), and having conducted a de novo
review, the Court is of the opinion that the Magistrate
Judge's report should be adopted in part.
filed the instant suit on February 25, 2019, alleging
violations of Plaintiff's “United States
citizenship and constitutional rights” (Dkt. #1 at p.
4). After granting Plaintiff's request to proceed in
forma pauperis (Dkt. #8), the Magistrate Judge
recommended dismissal of Plaintiff's claims, finding the
Court lacked subject matter jurisdiction (Dkt. #9).
Recognizing that Plaintiff's filing of the instant
lawsuit represented the “sixteenth lawsuit brought by
Plaintiff in the Eastern District of Texas since 2002,
” and that every one of Plaintiff's prior suits
have been dismissed for either a lack of subject matter
jurisdiction or failure to state a claim, the Magistrate
Judge further recommended Plaintiff's claims be found to
be frivolous and malicious, and thus subject to dismissal
with prejudice, and that he be enjoined from future filings
in the Eastern District of Texas, except as follows:
Plaintiff be prohibited from filing any new civil action in
the Eastern District of Texas unless he first files a motion
requesting leave of court to so do and attaches thereto
copies (1) Plaintiff's proposed complaint, (2) the
magistrate judge's findings, conclusions and
recommendation in this case, and (3) any final order of the
district judge and final judgment in this case. The Court
also recommends that the Clerk of the Court be directed to
reject any filings that Plaintiff submits in violation of the
(Dkt. #9 at p. 7). Plaintiff filed Objections to the
Magistrate Judge's Report on August 14, 2019, and
additional “Correspondence” on August 29, 2019,
which the Court construes as a supplement to his Objections
(Dkts. #11; #12). Plaintiff asserts that “Magistrate
Nowak is acting like a defense lawyer rather than a
judge” (Dkt. #11), and details for the Court the facts
underlying or related to Plaintiff's son's criminal
conviction (Dkt. #12).
TO REPORT AND RECOMMENDATION
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);
entirety of Plaintiff's formal Objection reads as
Magistrate Nowak is acting like a defense lawyer rather than
a judge[.] [A]ll I am asking the [C]ourt to do is to treat me
like I am an [A]merican citizen and respect the [A]merican
Constitution and Bill of Rights[.] [T]he Constitution states
I can represent myself in any court in America if I chose
to[.] I have served in the [A]merican [A]rmy honorably [and]
I expect to be treated honorably.
(Dkt. #11). To the extent Plaintiff again seeks the recusal
of the Magistrate Judge through his Objections, Plaintiff has
not demonstrated that the Magistrate Judge's recusal
and/or disqualification is appropriate. The findings and
conclusions contained in the Magistrate Judge's Report to
which Plaintiff objects, without more, are not a sufficient
basis to justify recusal. “[J]udicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994) (citing United States v.
Grinnell, 384 U.S. 563, 583 (1966)). Additionally,
Plaintiff's Objections do not address the bases upon
which the Magistrate Judge has recommended dismissal.
Plaintiff's Objections are overruled.
the finding of the Magistrate Judge that this Court lacks
subject matter jurisdiction over Plaintiff's cause is
adopted. Because the Court lacks jurisdiction, the
alternative basis recommended by the Magistrate Judge for
dismissal for frivolousness is rejected. Plaintiff is warned
that if he persists in filing frivolous or baseless actions
or actions over which the Court ...