August 21, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is an unspecified civil action brought by a pro se individual.
Contemporaneously with the filing of this complaint, Plaintiff filed two additional actions on August 13, 2003. Withreow v. Adolphus Hotel, et al., 3:03cv 1815, and Withreow v. United State's White House, 3:03cv 1817. The court notes that in some cases Plaintiff spells her last name as "Withreow" and in other cases she spells her last name as "Wimreoa."
Statement of Case: Even when liberally construed the complaint is difficult to understand. It accuses Defendant of identity theft for the purpose of stealing properties which Plaintiff was entitled to inherit "through . . . [her] rebirth. . . ." The complaint also seeks to hold Starbuck Coffee and the Adolphus Hotel responsible for stealing Plaintiff's identity. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. Her complaint is, thus, subject to screening under 28 U.S.C. § 1915(e)(2)(B) which provides that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) 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."
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). In Denton v. Hernandez. 504 U.S. 25, 32 (1992), the Supreme Court recognized that a court may dismiss a complaint as frivolous when it is based on an indisputable meritless legal theory or when the factual contentions are "clearly "baseless." The latter category encompasses claims which describe "fantastic or delusional" scenarios, or which "rise to the level of the irrational or the wholly incredible." Id. at 33.
Plaintiff's claims in this action are factually frivolous. Her allegations that the Holtze Corporation and other businesses have engaged in identify theft to steal property, which she was supposed to inherit, describe fantastic or delusional scenarios which are clearly irrational and incredible. Therefore, this action should be dismissed with prejudice as frivolous. See Marts v. Hines, 117 F.3d 1504,1506 (5th Cir. 1997).
This is not Plaintiff's first action which the court dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). During the last three months, Plaintiff has filed five actions in the Dallas Division for the Northern District of Texas in addition to the ones filed on August 13, 2003. See Withreow v. Miller, et al., 3:03cv 1019;Withreow v. Wright, 3:03cv 1020; Withreow v. Department of Defense, 3:03cvl021; Withreow v. Bush, et al., 3:03cv 1022; and Withreow v. City of Richardson, et al., 3:03cv 1289. The district court dismissed all five actions as frivolous pursuant to § 1915(e)(2)(B) (i). In the last action, the district court also warned Plaintiff that "any future frivolous lawsuits may result in the imposition of sanctions, including an order prohibiting her from filing any civil actions without paying the required filing fee or obtaining prior authorization from a district judge or magistrate judge."See Judgment filed on July 31, 2003, in No. 3:03cv 1289.
The district court has an obligation to protect the orderly administration of justice and to prevent abuse of the court's process by frivolous and vexatious litigants. In light of the recommendation in this case and the prior cases which have already been dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), it is self-evidence that Ms. Withreow has repeatedly violated Rule 11, Federal Rules of Civil Procedure. Upon a finding that Rule 11 has been violated a court is authorized to impose monetary sanctions upon a plaintiff such as Ms. Withreow. However, because she is indigent the threat of monetary sanctions is wholly ineffective.
It should be noted that a prisoner seeking to bring actions in federal court may be barred from bringing such action without first paying the $150.00 filing fee, if on three or more prior occasions the prisoner's suits have been dismissed as being frivolous. See 28 U.S.C. § 1915(g). However, since Ms. Withreow is not an incarcerated person, this sanction against the filing of additional lawsuits in forma pauperis is unavailable.
In order to ensure that Plaintiff files no additional frivolous actions in forma pauperis in the Northern District of Texas, the court should order that the Clerk not file any complaint subsequently submitted by Mary Ellen Withreow unless the complaint is accompanied by the $150 filing fee. RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
It is further recommended that the District Court enter a separate order in this case ordering the District Clerk to refuse to file any civil action on behalf of Mary Ellen Withreow unless accompanied by the $150.00 filing fee, but without prejudice to Ms. Withreow's right to file a motion for leave of court to file an action in forma pauperis which is accompanied by her proposed complaint. In such event her motion will be assigned a miscellaneous docket number and referred to a judge of this court.
A copy of this recommendation shall be mailed to Plaintiff.
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.