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Day v. Hernandez

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

December 18, 2019

WYNSTON DAY, Plaintiff
v.
SHERIFF SALLY HERNDEZ, ET. AL. Defendants

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before this Court are Wynston Day's (“Plaintiff”) Motion to Proceed In Forma Pauperis, filed on December 10, 2019 (Dkt. No. 3), and Plaintiff's Complaint (Dkt. No. 1). On December 4, 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), 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.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         After reviewing Plaintiff's Motion for Leave to Proceed In Forma Pauperis and Averment of Assets, 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.

         II. 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). A district court may summarily dismiss a complaint filed in forma pauperis if it concludes the action is: (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Under this statute, a claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). “A [claim] lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (quoting Davis v. Scott, 157 F.3d 882, 889 (5th Cir. 1998)). It lacks an arguable factual basis only if the facts alleged are “clearly baseless, ” a category encompassing “fanciful, ” “fantastic, ” and “delusional” allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 327-28).

         In addition, as the Fifth Circuit recently explained:

Some claims are so insubstantial, implausible, or otherwise completely devoid of merit as not to involve a federal controversy. Federal courts lack power to entertain these wholly insubstantial and frivolous claims. Determining whether a claim is wholly insubstantial and frivolous requires asking whether it is obviously without merit or whether the claim's unsoundness so clearly results from the previous decisions of the Supreme Court as to foreclose the subject.

Atakapa Indian de Creole Nation v. Louisiana, __ F.3d __, 2019 WL 6712330, at *1 (5th Cir. Dec. 10, 2019) (cleaned up).

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


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