GABRIEL GAYTAN SR v. SOCIAL SECURITY ADMINISTRATION (2023)

REPORT AND RECOMMENDATION

The undersigned magistrate judge considers this matter pursuant to 28 U.S.C. § 636(b)(1). Petitioner, proceeding in forma pauperis, filed his Amended Complaint on April 7, 2023. Dkt. No. 23. The undersigned recommends that Petitioner's claims against the Texas Bar, the Board of Doctors, and the State of Texas be dismissed without prejudice to filing separate suits against individual medical professionals and prison officials and that Petitioner be required to complete a questionnaire to support his claim against the United States of America.

I. Background

On September 10, 2021, Petitioner Gabriel Gaytan, Sr., pro se, filed a Complaint against the United States of America, the Texas Bar, the Board of Doctors, and the State of Texas, seeking $8 million for poverty and pain and suffering. Dkt. Nos. 1, 5. The Court ordered Petitioner to pay a filing fee or apply to proceed in forma pauperis, Dkt. No. 6, and Petitioner so applied. Dkt. No. 9. The Court found the Application deficient and gave Petitioner until January 6, 2022, to re-file it or pay the fee. Dkt. No. 10. He did not, and the case was dismissed for failure to prosecute. Dkt. No. 13. Petitioner subsequently moved to have his case re-opened, Dkt No. 16, and the Court denied the Motion for Petitioner's failure to comply with its earlier instructions. Dkt. No. 17. Petitioner refiled his Application to proceed in forma pauperis with new information. Dkt. No. 20. The Court granted it and ordered Petitioner to file an Amended Complaint, Dkt. No. 21, and, on April 7, 2023, he timely did. Dkt. No. 23.

II. Legal Standard

The Court must dismiss a proceeding in forma pauperis “at any time” if it determines that the action is “frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see Lebouef v. Island Operating Co., 342 F. App'x 983, 984, 984 (5th Cir. 2009) (“[T]he district court has a statutory responsibility to screen out frivolous suits.”). This applies to both incarcerated and non-incarcerated plaintiffs in forma pauperis. In re Simms, 2022 U.S. Dist. LEXIS 241520, at *6 (S.D. Tex. Dec. 14, 2022), report and recommendation adopted, Simms v. U.S. Customs & Border Prot., 2023 U.S. Dist. LEXIS 68954 (S.D. Tex. Apr. 20, 2023).

A frivolous complaint “lacks an arguable basis in law or fact.” Thompson v. City of Weatherford Municipality, No. 23-10767, 2023 WL 8368867, at *2 (5th Cir. Dec. 4, 2023) (quoting Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007)). That is, a complaint is frivolous “if it is based on an indisputably meritless legal theory.” Woods v. Wiley, No. 22-30401, 2023 WL 3255005, at *1 (5th Cir. May 4, 2023) (quoting Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)).

To state a claim upon which relief can be granted, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim must be sufficient both legally and factually. See Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This is the familiar 12(b)(6) standard. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017).

“Persons ․ may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Fed. R. Civ. P. 20(a)(2). “The provisions for permissive joinder under Rule 20 are very broad and the court is given discretion to decide the scope of the civil action and to make such orders as will prevent delay or prejudice.” Arrington v. City of Fairfield, Ala., 414 F.2d 687, 693 (5th Cir. 1969).

The Court construes pro se filings liberally. “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Pleadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). Where a complaint is inadequate even at these standards, the Court “may require a pro se litigant to complete a post-complaint questionnaire.” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009); see Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

III. Analysis

By his Amended Complaint, Dkt. No. 23, Petitioner sues four Defendants.

A. The United States of America

First, Petitioner sues the United States of America for pain and suffering, alleging,

Lack of Education for stripping me of my Rights for Both Reasons Medical and Financial Benefits Persecuting me to work I am disabled already if my Family suffered dearly we're not in Slavery Times those Times are over. Lack of Impartiality Negligence Abuse of Rights.

Am. Compl. 1, Dkt. No. 23 (cleaned up). To do justice, see Erickson, 551 U.S. at 94, the undersigned construes this liberally and takes cognizance of some related allegations from Petitioner's initial Complaint:

Crippled and Disabled Stopping my checks without notice nor cause. I was barely getting by w/ 1, 700 monthly And 2, 800 every 2 yrs. I re applied Around 4 times in A period of 2 years was turned down and applications were being squashed.

Dkt. No. 1 at 2.

These allegations plausibly show that Petitioner received benefits, that the benefits were stopped, and that Petitioner's re-applications were denied. But the allegations that the benefits were stopped “without notice nor cause” and that the re-applications were “squashed” amount to legal conclusions without adequate factual support to be found plausible. See Twombly, 550 U.S. at 570. Beyond these, Petitioner offers nothing to suggest that the stoppage of the benefits and denial of the re-applications were unlawful. Thus, even at the less stringent pro se standard, Petitioner's claim against the United States of America fails to state a claim upon which relief can be granted.

The undersigned recommends that Petitioner be required to complete a questionnaire to provide sufficient facts to support his claim that the denial of benefits was unlawful. See Brewster, 587 F.3d at 768. The questionnaire should substantiate, at a minimum, these facts of his claim:

1. What type of benefits, which he alleges were stopped unlawfully, did Petitioner receive?1

2. List the government agency that provided each of the benefits.2

3. Why did the agency provide the benefits?

4. If for a disability, what was the disability?

5. When did Petitioner apply for the benefits?

6. When was Petitioner's application for the benefits approved?

7. When did Petitioner start receiving the benefits?

8. For how long did Petitioner receive the benefits?

9. What work, if any, did Petitioner perform while receiving the benefits?

10. When did the agency stop the benefits?

11. What work, if any, has Petitioner performed since the benefits were stopped?

12. Why did the agency stop the benefits?

13. Why was it unlawful to stop the benefits?

14. Was Petitioner entitled to the benefits after they were stopped?

15. If he received the benefits for a disability, did Petitioner remain disabled after they stopped?

16. What communications did the agency provide regarding the stoppage of the benefits?

17. Was Petitioner given an opportunity to contest the stoppage of the benefits?

18. Did Petitioner contest the stoppage? If so, when, and what was the result?

19. Did Petitioner appeal the stoppage within the agency? If so, when, and what was the result?

20. Did Petitioner appeal the stoppage in any court? If so, when, and what was the result?

21. When did Petitioner re-apply for benefits?

22. Was Petitioner entitled to the benefits when the re-applications were denied?

23. Why did the agency deny the re-applications for benefits?

24. What communications did the agency provide regarding the re-applications?

25. Was Petitioner given an opportunity to contest the denial of the re-applications?

26. Did Petitioner contest the denial? If so, when, and what was the result?

27. Did Petitioner appeal the denial within the agency? If so, when, and what was the result?

28. Did Petitioner appeal the denial in any court? If so, when, and what was the result?

29. Why was it unlawful to deny the re-applications?

30. Is Petitioner entitled to the benefits today?

31. If he received the benefits for a disability, does Petitioner remain disabled today?

Wherever they might make his claim more plausible, Petitioner should describe particularly the times, dates, places, and names associated with his responses.

B. The Texas Bar

Second, Petitioner sues the Texas Bar for pain and suffering, alleging,

Attorneys for not Taking me seriously When seeking Legal Assistant Discrimination Favoritism Lack of Competence justice is not equalibredy [sic] balanced Having to Represent my Self Because of their ignorance not defending vs with All They got swearing under oath Zeal is being Abused.

Am. Compl. 1, Dkt. No. 23 (cleaned up).

Petitioner alleges no facts to support this non-claim. Except in limited circumstances not suggested here, Petitioner is entitled neither to legal representation by any particular lawyer nor to legal representation free of charge. See, e.g., Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018). The claim is indisputably meritless. See Harper, 174 F.3d at 718. Likewise, joinder of the Texas Bar lacks an arguable basis in law or fact, see Thompson, 2023 WL 8368867, at *2, because Petitioner's claim against it apparently has nothing to do with his claim against the United States of America. See Fed. R. Civ. P. 20(a)(2).

The undersigned recommends that Petitioner's claim against the Texas Bar be dismissed as frivolous and for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii).

C. Board of Doctors

Third, Petitioner sues the Board of Doctors for pain and suffering, alleging,

negligent [illegible] going to the emergency in severe pain and giving me Ibuprofen Several Times negligence not giving me Adequate Medications Also not An Experimental Object For Treating me with All Kinds of medications that don't work suffered a prostate surgery because of That need critical Attention with Dental. And cannot because money is in between.

Am. Compl. 1–2, Dkt. No. 23 (cleaned up). To do justice, see Erickson, 551 U.S. at 94, the undersigned construes this liberally and takes cognizance of some related allegations from Petitioner's initial Complaint:

I should be Taking 4. 15mg of ms contin Daily, 3 Hydrocodones 10mg, 10mg of Muscle Relaxers and Ambien 10 mg nightly. I Tried going to the Hospitals At E.R. But most of the Time was neglected pain Medications now I have full blown Insomnia, I Lost my Senses.

․

When I was injured I had To go Through 2 Horrible and painful Surgeries due to improper Med. Attention Through the years I developed Rheumatoid Osteoarthritis w/ unbearable pains and Aches, etc.

Dkt. No. 1 at 3 (cleaned up). The Complaint contains other hints of medical history, but none is coherent.

These facts do not state a medical malpractice claim, see, e.g., Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019), and, even at the pro se standard, they do not state any federal claim. See Twombly, 550 U.S. at 570. They certainly suggest no arguable basis in law or fact to join the “Board of Doctors” in this action. See Thompson, 2023 WL 8368867, at *2; Fed. R. Civ. P. 20(a)(2). Properly developed, though, they might conceivably support a federal claim against individual medical professionals. See, e.g., Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd; Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680.

The undersigned recommends that Petitioner's claim against the Board of Doctors be dismissed as frivolous and for failure to state a claim without prejudice to filing a separate suit against individual medical professionals. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii).

D. State of Texas

Finally, Petitioner sues the State of Texas for pain and suffering, alleging,

Injuring me not giving my proper Medications while I was incarcerated. Still Still now suffering without no Financial no income what so ever never Received what I was [illegible] for. And for other Reasons That I'd be glad to Explain.

Am. Compl. 2, Dkt. No. 23 (cleaned up).

Again, these facts do not state a medical malpractice claim, see Windrum, 581 S.W.3d at 768, and, even liberally construed, they do not state a federal claim. See Twombly, 550 U.S. at 570. Petitioner's claim against the State of Texas apparently has nothing in common with his claim against the United States of America, see Fed. R. Civ. P. 20(a)(2); Thompson, 2023 WL 8368867, at *2, and the State almost certainly is immune from his suit anyway. See U.S. Const. amend. XI; Hans v. Louisiana, 134 U.S. 1 (1890). Petitioner's allegations do, however, suggest the kernel of a constitutional claim against individual prison officials for deliberate indifference to serious medical need. See U.S. Const. amends. VIII, XIV; Austin v. City of Pasadena, Texas, 74 F.4th 312, 327–28 (5th Cir. 2023); Rogge v. City of Richmond, Tex., 995 F. Supp. 2d 657, 666 (S.D. Tex. 2014).

The undersigned recommends that Petitioner's claim against the State of Texas be dismissed as frivolous, for failure to state a claim, and for seeking monetary relief against a defendant who is immune from such relief without prejudice to filing a separate suit against individual prison officials. See 28 U.S.C. § 1915(e)(2)(B)(i), (ii), (iii).

IV. Recommendation

For the above reasons, the undersigned RECOMMENDS that Petitioner's claims against the Texas Bar, the Board of Doctors, and the State of Texas be dismissed without prejudice to filing separate suits against individual medical professionals and prison officials and that Petitioner be required to complete a questionnaire to support, with particular facts, his claim against the United States of America. In light of Petitioner's difficult living conditions and the factual details he will need to collect to complete the questionnaire, the undersigned RECOMMENDS that Petitioner be given ninety days to file the completed questionnaire. Finally, the undersigned RECOMMENDS that Petitioner be admonished that failure to file the completed questionnaire by that deadline may result in dismissal of his suit. See Fed. R. Civ. P. 41(b); Teel v. Collins, 59 F.3d 1242, 1995 WL 413135, at *1 (5th Cir. 1995) (per curiam, unpublished).

The Clerk of Court is DIRECTED to mail of copy of this report and recommendation to Petitioner at the address of record by any receipted means.

IT IS SO REPORTED AND RECOMMENDED.

Signed this December 18, 2023, at Laredo, Texas.

Warnings

The parties may file objections to this Report and Recommendation unless they waive the right to do so. 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. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after being served with a copy of the Report—or the party's waiver of the right to do so—shall bar that party from de novo review by the District Court of the proposed findings and recommendations and, except upon grounds of plain error, shall bar the party from appellate review of proposed factual findings and legal conclusions accepted by the District Court to which no objections were filed. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

FOOTNOTES

1.   The remainder of the questionnaire concerns only these (“the benefits”). Petitioner need not recite every form of benefit he ever received: only the benefits whose denial he challenges here.

2.   If Petitioner challenges the denial of multiple sorts of benefit from multiple agencies, he must answer each question of the questionnaire as to each sort of benefit from each agency.

DIANA SONG QUIROGA UNITED STATES MAGISTRATE JUDGE