IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
WESLEY PRATT, § Plaintiff, § V. § § JPMORGAN CHASE BANK, CODILIS § A-25-CV-27-RP-ML & STAWIARSKI, AND DAVID § BLAKELY, § Defendants.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO THE HONORABLE UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the court is Plaintiff’s Application to Proceed In Forma Pauperis (Dkt. 3). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e). I. REQUEST TO PROCEED IN FORMA PAUPERIS The court has reviewed Plaintiff’s financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff’s request for in forma pauperis status. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination 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, although Plaintiff 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 made a § 1915(e) review of the claims made in this
complaint and is recommending Plaintiff’s claims be dismissed without prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the District Court’s review of the recommendations made in this Report. If the District Judge declines to adopt the recommendations, then service should be issued at that time upon Defendants. II. REVIEW OF THE MERITS OF THE CLAIM Because Plaintiff has been granted leave to proceed in forma pauperis, the court is required by statute to review the Complaint. Section 1915(e)(2) 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). A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327–28. Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 20–21 (1972). However, pro se status does not offer a plaintiff 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). Generally, a federal court has jurisdiction over a case in two circumstances. The first, known as federal question jurisdiction, exists if a case “arises under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1331. The second circumstance in which a federal court
has jurisdiction is frequently termed diversity jurisdiction. See generally 28 U.S.C. § 1332 (setting out the elements required for jurisdiction based on “diversity of citizenship”). “Diversity jurisdiction under 28 U.S.C. § 1332 only exists where the parties are citizens of different states and the amount in controversy exceeds $ 75,000.” White v. FCI USA, Inc., 319 F.3d 672, 674- 675 (5th Cir. 2003). Mr. Pratt brings this case against JPMorgan Chase Bank, Codilis & Stawiarski, and David Blakely, asserting that his home as been wrongfully foreclosed. The home is located in Texas, and Pratt provides Texas addresses for himself and Defendants Codilis & Stawiarski and David Blakely. In his form Complaint, he states the court has federal question jurisdiction. Dkt. 1
at 3. Where he is asked to list specific federal statutes that give rise to his claim, he states “wrongful deceitful foreclosure/predatory lending.” Id. Nowhere in the Complaint does he further explain any federal claims. In his Motion for Temporary Restraining Order, which has not been referred to the undersigned, he states Defendants have violated the Texas Debt Collection Act and Consumer Protection Act. Dkt. 2 at 1. He again does not describe the violation of any federal laws. Here, it does not appear that the court has federal question jurisdiction. Pratt has not described any specific federal law Defendants allegedly violated or described how they violated that law. Nor does the court appear to have diversity jurisdiction, as the parties do not appear to completely diverse. Accordingly, the undersigned will recommend this case be dismissed without prejudice for lack of subject matter jurisdiction. III. ORDER AND RECOMMENDATIONS The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 3). The Magistrate Court RECOMMENDS the District Court DISMISS WITHOUT PREJUDICE Plaintiffs cause of action for lack of subject matter jurisdiction. The referral of this case to the Magistrate Judge should now be canceled. IV. WARNING The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
WESLEY PRATT, § Plaintiff, § V. § § JPMORGAN CHASE BANK, CODILIS § A-25-CV-27-RP-ML & STAWIARSKI, AND DAVID § BLAKELY, § Defendants.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO THE HONORABLE UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the court is Plaintiff’s Application to Proceed In Forma Pauperis (Dkt. 3). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e). I. REQUEST TO PROCEED IN FORMA PAUPERIS The court has reviewed Plaintiff’s financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff’s request for in forma pauperis status. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination 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, although Plaintiff 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 made a § 1915(e) review of the claims made in this
complaint and is recommending Plaintiff’s claims be dismissed without prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the District Court’s review of the recommendations made in this Report. If the District Judge declines to adopt the recommendations, then service should be issued at that time upon Defendants. II. REVIEW OF THE MERITS OF THE CLAIM Because Plaintiff has been granted leave to proceed in forma pauperis, the court is required by statute to review the Complaint. Section 1915(e)(2) 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). A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327–28. Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 20–21 (1972). However, pro se status does not offer a plaintiff 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). Generally, a federal court has jurisdiction over a case in two circumstances. The first, known as federal question jurisdiction, exists if a case “arises under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1331. The second circumstance in which a federal court
has jurisdiction is frequently termed diversity jurisdiction. See generally 28 U.S.C. § 1332 (setting out the elements required for jurisdiction based on “diversity of citizenship”). “Diversity jurisdiction under 28 U.S.C. § 1332 only exists where the parties are citizens of different states and the amount in controversy exceeds $ 75,000.” White v. FCI USA, Inc., 319 F.3d 672, 674- 675 (5th Cir. 2003). Mr. Pratt brings this case against JPMorgan Chase Bank, Codilis & Stawiarski, and David Blakely, asserting that his home as been wrongfully foreclosed. The home is located in Texas, and Pratt provides Texas addresses for himself and Defendants Codilis & Stawiarski and David Blakely. In his form Complaint, he states the court has federal question jurisdiction. Dkt. 1
at 3. Where he is asked to list specific federal statutes that give rise to his claim, he states “wrongful deceitful foreclosure/predatory lending.” Id. Nowhere in the Complaint does he further explain any federal claims. In his Motion for Temporary Restraining Order, which has not been referred to the undersigned, he states Defendants have violated the Texas Debt Collection Act and Consumer Protection Act. Dkt. 2 at 1. He again does not describe the violation of any federal laws. Here, it does not appear that the court has federal question jurisdiction. Pratt has not described any specific federal law Defendants allegedly violated or described how they violated that law. Nor does the court appear to have diversity jurisdiction, as the parties do not appear to completely diverse. Accordingly, the undersigned will recommend this case be dismissed without prejudice for lack of subject matter jurisdiction. III. ORDER AND RECOMMENDATIONS The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 3). The Magistrate Court RECOMMENDS the District Court DISMISS WITHOUT PREJUDICE Plaintiffs cause of action for lack of subject matter jurisdiction. The referral of this case to the Magistrate Judge should now be canceled. IV. WARNING The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (Sth Cir. 1996)(en banc).
SIGNED January 10, 2025.
MARK LANE UNITED STAT AGISTRATE JUDGE