Weah v. Estancia Villas LLC

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

ORDER ADOPTING REPORT AND RECOMMENDATION

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

On this date the Court considered United States Magistrate Judge Henry J. Bemporad's Report and Recommendation in the above-numbered and styled consolidated cases, filed July 9, 2024 (ECF No. 23), recommending that Plaintiff's complaints in these consolidated cases be DISMISSED pursuant to Rule 8(a)(2) and 28 U.S.C. § 1915(e)(2)(B). After careful consideration, the Court ADOPTS the Magistrate Judge's Report and Recommendation.

BACKGROUND

In April and May 2024, Plaintiff Allen Weah, seeking to proceed IFP, initiated two separate actions challenging his eviction from his home in Austin, Texas-one against his former landlord, Estancia Villas LLC, No. SA-24-CV-326-XR (the “Estancia Action”) and one against the State of Texas, No. SA-24-CV-505-XR (the “Texas Action”).

Magistrate Judge Bemporad, who was auto-assigned to the Estancia Action, granted Plaintiff permission to file electronically (ECF No. 5) and his motion to proceed IFP (ECF No. 3), but directed Plaintiff to show cause why the case should not be dismissed for lack of subject matter jurisdiction by filing an amended complaint with a “short and plain statement of the grounds for the court's jurisdiction.” ECF No. 3 at 2.

By registering for electronic filing, Plaintiff agreed to accept service by CM/ECF and consented to service by electronic means. See ECF No. 5 (order granting Plaintiff's motion for permission to file electronically); E-Filing and E-Noticing Registration Form at 1, https://perma.cc/DD82-NCBX (“By submitting this form, I agree to abide by all Court rules, orders, policies and procedures governing the use of the electronic filing system. I also consent to service by electronic means in the circumstances permitted under those rules, orders, policies, and procedures. I further consent to allow the court to provide e-mail notifications on my behalf to all parties registered with the ECF System in lieu of providing certificate of service per Local Court Rule CV-5[.]”);Administrative Policies and Procedures for Electronic Filing in Civil and Criminal Cases at 18, https://perma.cc/52SM-QC8S (“Registration as a Filing User constitutes consent to electronic service of all documents as provided both in these procedures and by Rule 5, Federal Rules of Civil Procedure[.]”).

The Texas Action was also auto-assigned to Magistrate Judge Bemporad, who noted that the factual allegations in both cases were identical and issued an order consolidating the cases under the Estancia Action, which was first filed. See Texas Action, ECF No. 21 at 1 (W.D. Tex. May 21, 2024) (the “Consolidation Order”).

In response, Plaintiff first sought to appeal the Consolidation Order to the Fifth Circuit and moved for IFP status on appeal. ECF Nos. 13, 14. The Magistrate Judge recommended that the motion be denied, pointing out that the appeal of the consolidation order should have been directed to the undersigned in the first instance rather than the Fifth Circuit. See ECF No. 16 at 2 (citing 28 U.S.C. § 636(b)(1)(A) (a district court judge may reconsider magistrate judge's nondispositive pretrial orders “where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.”). The Court adopted the Magistrate Judge's recommendation. ECF No. 22.

Plaintiff also filed an amended complaint, explaining that his action was “not a diversity case,” as “[a]ll parties are citizens of the same state.” ECF No. 18 at 2. Instead, Plaintiff asserts separate federal claims each Defendant: claims against Estancia Villas, LLC for fair housing violations under 42 U.S.C. §§ 3604, 3613, and 3617 and constitutional violations under the First, Eighth, and Ninth Amendments, and against the State of Texas for deprivation of constitutional rights pursuant to 42 U.S.C. § 1983. Id. at 2-3. Plaintiff also seeks “post judgment federal prosecution” against both Defendants under 18 U.S.C. §§ 1962 and 2340.3

Although the amended complaint identifies the claims Plaintiff seeks to assert, it offers no factual allegations to support the claims against either Defendant. And none of Plaintiff's prior pleadings plausibly show that he is entitled to relief under any of the federal statutes referenced in the amended complaint. As the Magistrate Judge noted:

Plaintiff has not explained how Estancia Villas, LLC discriminated against him based on race, color, religion, sex, familial status, national origin, or handicap in violation of 42 U.S.C. 3604 and related fair housing laws. See 42 U.S.C. § 3604(a)-(f). Nor has he explained why the State of Texas would not be immune from a lawsuit under 42 U.S.C. § 1983 or other federal civil rights provisions. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989) (sovereign immunity bars actions against a state or a state official unless Congress has abrogated the immunity or the state has specifically waived its immunity); Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (same). Finally, while Plaintiff calls for post-judgment criminal prosecution of Defendants under 18 U.S.C. § 1962, he has no standing to demand criminal prosecution by federal authorities. Gill v. State of Tex., 153 Fed.Appx. 261, 262-63 (5th Cir. 2005) (“[A] private citizen . . . has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute”) (citations omitted).

ECF No. 23 at 4. Accordingly, the Magistrate Judge recommended that Plaintiff's amended complaint be dismissed for failure to state a claim pursuant to Rule 8(a)(2) and 28 U.S.C. § 1915(e)(2)(B). See id.

Any party who desires to object to a Magistrate Judge's findings and recommendations must serve and file his or her written objections within fourteen days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). Plaintiff was served with a copy of the Report and Recommendation via email on June 5, 2024. No objections have been filed with this Court.

Because no party has timely objected to the Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

CONCLUSION

The Court has reviewed the Report and Recommendation and finds it to be neither clearly erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Accordingly, the Court ACCEPTS the Magistrate Judge's recommendation and Plaintiff's amended complaint is DISMISSED for failure to state a claim. A final judgment will issue in each consolidated case pursuant to Rule 58.

The Clerk is DIRECTED to CLOSE both consolidated actions (No. SA-24-CV-326-XR and No. SA-24-CV-505-XR).

The Clerk is FURTHER DIRECTED to mail a copy of both (1) this Order and (2) the Final Judgments to Plaintiff Allen Weah at 8222 Gault Lane, Apt. 502, San Antonio, TX 78209.

It is so ORDERED.