THE WAY v. STATE OF TEXAS (2023)

REPORT & RECOMMENDATION

Pending before the Court is Plaintiff The Way's Petition for a Writ of Mandamus. (Dkt. No. 1.) No response was directed, and none is necessary. Plaintiff has also moved to proceed in forma pauperis (IFP) (Dkt. No. 2) and for an injunction. (Dkt. No. 5.)

The Court recommends that the Court deny IFP and dismiss Plaintiff's petition and motion for an injunction as frivolous.

I. Background

Plaintiff has filed a petition for a writ of mandamus against the State of Texas. (Dkt. No. 1.) Plaintiff appears to have owned or run a church or monastery at a ranch in Laredo, Texas. (Dkt. No. 1-1 at 2.) Plaintiff claims that his “monastery property” is “tax exempt because it is a 501 c exempt as a religious organization.” [sic] (Id. at 9.) The agent for Plaintiff's church is Anastacio Barrera. (Id.) He and Plaintiff The Way appear to be one and the same and the Court will treat them as such. Plaintiff's claims and requests for relief are wide-ranging and at times nonsensical. Reading Plaintiff's claims and requests for relief together, broadly, and in the most favorable light, Plaintiff claims that the church property, his inheritance, has been seized by his sisters, Webb County Tax Collector Patricia Barrera and Mirth Barrera, in conspiracy with the government and their family lawyer, Sergio Martinez.¹ (Id. at 1–2.)

This is not the first time that Plaintiff has claimed the Government illegally conspired along with an attorney to seize his church property. (See Dkt. No. 1 at 1 in 5:93-CV-22.) Back in 1993, Plaintiff claimed that the City of Laredo Health and Animal Control Inspector Pedro Lopez and City of Laredo Assistant Attorney Mr. Roy Rodriguez conspired against Plaintiff to issue a citation against him to force him to “remove [p]roperty belonging to THE WAY, CHURCH.” [sic] (Id.) Plaintiff contested the citation in municipal court, lost, and was ordered to pay a fine. (Dkt. No. 5 at 1–2 in 5:93-CV-22.) To redress his perceived wrongs in how the municipal trial was conducted, Plaintiff filed suit in this Court against Judge Alvino (Ben) Morales, the Laredo Municipal Court judge who presided over Plaintiff's municipal case. (Dkt. Nos. 1 at 1; 5 at 1–2 in 5:93-CV-22.) Plaintiff's claims were dismissed for failure to state a claim and for frivolousness. (Dkt. Nos. 5, 7–8 in 5:93-CV-22.)

Similarly, in his present filings, Plaintiff alleges that

Web County Tax Collector Patricia Barrera entered a Conspiracy with The Webb County Appraisal District to use Webb County Tax Collector Patricia Barrera Home Address as the mailing address of “THE WAY” Church in Laredo, Texas. This Conspiracy was done so The Webb County Tax Office in the attempt to Rob 10 Acres known as Track Fin La Coma Subdivision in Webb County, Texas By providing SEWER SERVICE TO “THE WAY” CHURCH. THIS IS HOW “THE WAY” CHURCH Lost It's 10 Acre Religious MONASTARY and all its assets 40 Nubian Registered Milk Goats about 40 sheep 140 Chickens, 10 Geese, 15 Ducks, and Pair of New Zealand Show Rabbits about to have a litter, Two New Tractors with Equipment, Five Trailers, Two new 20 Feet Green Metal Gates, one 300 Gallon water Fish Tank with over 500 baby Tilapia fish. All this was done Without “DUE PROCESS OF LAW” and Denial by Federal and State Law Officials to Stop this ILLEGAL CONSFISCATETION OF THIS RELIGIOUS MONASTARY without “DUE PROCESS OF LAW” in Violation of their Oath of Office to Preserve, Protect, and Defend “THE UNITED STATES CONSTTUTION” Which says That your Life, Your Liberty and Your Property cannot be taken away without “DUE PROCESS OF LAW” [sic]

(Dkt. No. 1-1 at 1–2.)

Plaintiff appears to claim that one of his sisters, Webb County Tax Collector Patricia Barrera, wanted to sell a family property in Laredo approximately thirty years ago where “Barrera's Stop and Shop #6 was located.” (Id. at 12.) After he refused, Patricia Barrera allegedly proposed a plan to split their inheritance. (Id.) Plaintiff allegedly accepted this proposal because he believed he would keep the ranch property in the split, as his father had told him “[the ranch house] would belong to me because I like to live in the ranch.” (Id.)

Plaintiff alleges that Patricia Barrera's proposal was part of a plot hatched by both of his sisters, along with their family attorney and the government, to divest him of his inheritance. (Id.) They completed the alleged plot under the auspices of denying a religious tax exemption to Plaintiff's church on the property. (Id. at 1.) Plaintiff appears to allege that after he failed to pay taxes on the church property, the property was seized and sold at a sheriff's sale. (Id. at 9.) Plaintiff claims to have been denied due process of law “because we had never been [i]nformed about any tax debt or that our property was up for sale.” (Id.) Moreover, Plaintiff appears to state that excess funds were left over from the alleged seizure and that his family attorney stole them.

On May 1,2017 our Church Ten Acre Monastery and all our Assets, where we Practice our Religion of taking care of our Mother Earth was Rob or Stolen from us without any Notice and The Denial of a Court Trail and DENIAL OF DUE PROCESS OF LAW. WHEN THE COUNTY TRIED TO RETURN THE EXCESS FUNDS, OUR ATTORNEY TRIED TO STEAL ABOUT 28,000 DOLLARS WHEREBY the LAW says AN ATTORNEY CAN NOT CHARGE MORE THEN 1,000 DOLLARS. [sic]

(Id. at 3.)

A sampling of Plaintiff's additional ramblings include that the “State of Texas stop Religious Persecution and Harassment to citizens that want to Obey God's First Commandment to Man, that Man take care of our Mother earth and its inhabitants. That Citizens be allow to obey Gods Commandment without restrictions and be allowed to have pets” [sic] and that “The United States Department of Justice stop this Conspiracy to take away our second amendment Rights to own and have Guns to protect ourselves from Criminals. ‘The Uvalde, Texas Massacre, is an example of this Conspiracy to take away our guns.’ ” [sic] (Dkt. No. 1 at 2, 4.) Plaintiff claims that “The United States Immigration Service return The Visa of Carlos a Volunteer Member of our Church that was never an employee of ‘The Way’ Church.” (Id. at 1.) Plaintiff claims that “Today Corrupt Federal Officials used The Covid Epidemic to stop all help in its desire to make our Court system a Monopoly of The American Bar Association.” (Id. at 2.) In one of Plaintiff's less-fantastical claims, Plaintiff claims that a “high speeding [v]ehicle” damaged its church property, “causing over $5,000, dollars in Damages to our property․ The Police refuse to arrest this Criminal ․ The State of Texas serves only Corporate America.” (Id. at 4.) Plaintiff seeks the arrest of the driver that damaged the property and that a criminal complaint be filed with the FBI “to make this [c]riminal pay damages with [i]nterest for damages done to our [p]roperty.” (Id.)

Taken together, Plaintiff claims center around his feud with his tax collector sister, in which he accuses her of conspiring with the government and second sister to seize his inheritance. For the rest of his claims, Plaintiff seeks a series of injunctions addressing other feuds, such as his feud with his family's lawyer and feuds that the Court cannot make sense of, including those mentioning gun rights, a church volunteer lacking a visa, and church property damage. (See id. at 1–4.)

II. Legal Standard

Section 1915(e)(2)(B) requires the district court to screen petitions by plaintiffs who are granted IFP status. Simms v. U.S. Customs & Border Prot., No. 7:22-CV-0316, 2022 WL 19567959, at *3 (S.D. Tex. Dec. 14, 2022), report and recommendation adopted, No. 7:22-CV-0316, 2023 WL 3025081 (S.D. Tex. Apr. 20, 2023) (citing 28 U.S. § 1915(e)(2)(B)). A claim is subject to dismissal if it either (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted, (iii) or seeks monetary relief against a defendant who is immune from such relief. § 1915(e)(2)(B).

A “frivolous” claim lacks an arguable basis in law or fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, such as if it alleges the violation of a legal interest that clearly does not exist. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)) (quotations omitted). A claim is factually frivolous if the facts alleged are clearly baseless, which encompasses allegations that are fanciful, fantastic, and delusional. Denton, 504 U.S. at 32–33 (cleaned up); Hicks v. Garner, 69 F.3d 22, 35 (5th Cir. 1995).

“A court may dismiss a complaint as frivolous if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Vasquez v. Bldg. & Standards Comm'n, No. 6:20-MC-9, 2020 WL 7388089, at *1 (S.D. Tex. Dec. 15, 2020), report and recommendation adopted, No. 6:20-CV-00072, 2021 WL 4864197 (S.D. Tex. Oct. 18, 2021) (citing Denton, 504 U.S. at 32–34).

A complaint fails to state a claim upon which relief may be granted when it fails to 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). Because Plaintiff is pro se, his pleadings are entitled to review under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

Yet even under this liberal standard of construction, Plaintiff's petition should be dismissed as his allegations are fantastic, delusional, and factually frivolous. There is no necessity for Plaintiff to present additional facts. The facts that Plaintiff has alleged are clearly baseless. His petition is nonsensical and meritless.

III. Discussion

Plaintiff's petition and motion for preliminary injunction should be dismissed as frivolous. His claims repeat a pattern of filing frivolous lawsuits in which he claims the Government illegally seized The Way's property. (See Dkt. 5:93-CV-22.) The Court also recommends denial of IFP because Plaintiff's claims are frivolous and because Plaintiff's IFP application is nonresponsive and lacks specificity. Even if IFP status was granted, Plaintiff's claims would not survive screening under § 1915(e)(2)(B). Plaintiff's claims are frivolous because they have no arguable basis in law or fact.

Plaintiff appears to file a petition for a writ of mandamus against the State of Texas under the federal mandamus statute, 28 U.S.C. § 1361. The statute provides that district courts shall have “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” § 1361. “Although the writ of mandamus was abolished by Federal Rule of Civil Procedure 81(b), federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law [pursuant to] 28 U.S.C. § 1651.” Moye v. Clerk, DeKalb Cnty. Superior Ct., 474 F.2d 1275, 1275 (5th Cir. 1973). The State of Texas is not an agency of the United States for purposes of § 1361. And federal courts have no power to issue a writ of mandamus to direct state officials in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275–76 (5th Cir. 1973).

Plaintiff is also precluded from succeeding on his petition against the State of Texas because the Eleventh Amendment precludes suit against a state by a citizen of that state in federal court. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”) (cleaned up). “This jurisdictional bar applies regardless of the nature of the relief sought.” Id. The nature of the facts Plaintiff alleges makes it seem as though Plaintiff may be trying to allege that he was subject to an unjust taking in violation of the Fifth Amendment. But such a claim would be more akin to a civil rights claim under 42 U.S.C. § 1983, and because of the Eleventh Amendment's bar, the State of Texas is not a “person” that can be sued under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).

Plaintiff additionally complains about the lack of criminal charges against the driver that allegedly damaged church property, but he likewise cannot challenge the prosecutor's policies. See United States v. Texas, 599 U. S. ___, at *1 (2023) (slip op.); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (neither member of public at large nor victim has right to have another criminally prosecuted). “[In] American jurisprudence at least,” a party “lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” See United States v. Texas, 599 U. S. at *1 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Likewise, prosecutors are entitled to absolute immunity from suit in connection with decisions made while pursuing criminal charges. See Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (holding that prosecutors are immune from immune from a civil suit for damages under § 1983 for initiating a prosecution and in presenting the state's case ); see also Loupe v. O'Bannon, 824 F.3d 534, 538 (5th Cir. 2016) (“A prosecutor enjoys absolute immunity when her actions are ‘intimately associated with the judicial phase of the criminal process.’ ”) (quoting Imbler, 424 U.S. at 430). For all of these reasons, Plaintiff fails to articulate a viable claim against the State of Texas.

Moreover, Plaintiff's allegations of a government conspiracy to take away his property and people's firearms, the latter for which he claims the “Uvalde, Texas Massacre, is an example,” are the sort of claims that courts routinely dismiss as factually frivolous. See, e.g., Simmons v. Payne, 170 F. App'x 906, 2006 WL 690868, at *1 (5th Cir. Mar. 17, 2006) (holding that the district court did not abuse its discretion in dismissing a complaint “alleging [the] existence of vast conspiracy by all levels of state government and federal government”); Cummings v. Stewart, No. CV 21-0146, 2021 WL 11085719, at *2–3 (W.D. La. May 28, 2021) (recommending a stay of the plaintiff's claims pending the outcome of his ongoing criminal prosecution), report and recommendation adopted, No. CV 21-0146, 2021 WL 11085718 (W.D. La. Aug. 10, 2021), judgement issued in Cummings v. Stewart, No. CV 21-0146-P, 2021 WL 4887977, at *1 (W.D. La. Oct. 19, 2021) (dismissing as frivolous the plaintiff's claims alleging that he is the victim of “corruption” and a “prosecutorial conspiracy” to convict him); Styles v. Equal Opportunity Emp. Comm'n, No. 3:17-CV-2256-N-BH, 2020 WL 3038579, at *1 (N.D. Tex. Apr. 6, 2020), report and recommendation adopted, No. 3:17-CV-2256-N-BH, 2020 WL 3036628 (N.D. Tex. June 5, 2020) (dismissing as frivolous the plaintiff's complaint against the EEOC, which the plaintiff had based “on the grounds of A Destruction of Wealth Conspiracy and Organization of a Crime ․ Illegal History Abetting In the State Of Texas” [sic]); Johnson v. Drug Enforcement Agency, 137 F. App'x 680, 680 (5th Cir. 2005) (per curiam) (dismissing as frivolous the plaintiff's allegations that the DEA implanted a transmitter in his scalp and that he was “exploited by ‘wealthy persons’ from Europe and Asia” seeking to “clone [his] spiritual persona,” among other claims).

As “evidence” for his claims in the present petition, Plaintiff refers repeatedly to his own numerous attached affidavits, which he has been filing with the Webb County Clerk's Office as far back as 1984. (See Dkt. Nos. 1 at 2–3; 1-1 at 2, 5–6, 9–12, 14, 20.) For example, Plaintiff cites to “Exhibit 1; 2; 3; 4; 5; and [E]xhibit 6” for the proposition that “all Federal and State of Texas Courts provide all Citizen Attorney-in-Facts with information about Court Procedures ․” [sic] (Dkt. No. 1 at 2.) He cites to another exhibit, Exhibit 9, as support for his claim that the driver of a car that allegedly damaged his property must be prosecuted. (Dkt No. 1.1 at 3–4.)

Yet Plaintiff's “exhibits” are his own affidavits, which also cite to other affidavits.² (Dkt. No. 1-1.) Plaintiff appears to recycle these affidavits. For example, on March 3, 2023, Plaintiff refiled one of his affidavits from August 16, 2017. (Id. at 5.) Plaintiff even refiled an affidavit originally filed on March 15, 1984, again on March 3, 2023, prior to the filing of his present petition. (Id. at 20.)

In each affidavit, Plaintiff airs similar grievances to his other affidavits and to his present petition. (See id.) He complains to the tax collector's office about the alleged conspiracy to seize his property. To the public, he laments the downfall of the Constitution and this country via the sign attached to a fence on his property. (Id. at 9.) Plaintiff thus appears to attempt to create a paper trail as “proof” for his claims. The circular nature of Plaintiff's filing and citing of his own affidavits further supports the fanciful, futile, and meritless nature of Plaintiff's claims.

Moreover, the content of Plaintiff's present-day filings mirrors the content in Plaintiff's filings in the 1993 case before this same Court. (Dkt. Nos. 1–2, 6 in 5:93-CV-22.) There the Court dismissed Plaintiff's claims as frivolous and for failure to state a claim, further supporting dismissal of Plaintiff's present claims as frivolous and meritless. (Dkt. Nos. 1, 5, 7–8 in 5:93-CV-22.)

Plaintiff's motion for a preliminary injunction is equally frivolous, asking the Court to prevent the federal government from “passing any laws that will change our Second Amendment Rights of Citizen having Guns to protect our lives from Criminals,” claiming that “This Criminals in our government want to bind first the strong man to plunder the house of The United States so it will be like Mexico.” [sic] (Dkt. No. 5.)

IV. Conclusion and Recommendation

The Court recommends dismissal of Plaintiff's petition as frivolous. Given the outlandish and fantastical nature of Plaintiff's claims, the Court finds that it would be futile to grant Plaintiff leave to amend his petition to cure any pleading deficiencies or to remedy his IFP application.

It is, therefore, RECOMMENDED that Plaintiff's “Petition for a Writ of Mandamus: to bring Criminal to Trial that under Color of Law are denying Citizens their Rights. By having committed a Felony Crime according to ‘THE RULE OF LAW' Title 18 Section 241 & 242 of The United States Criminal Code” [sic] (Dkt. No. 1) be DISMISSED with PREJUDICE.

The Court also RECOMMENDS DENIAL of IFP. (Dkt. No. 2.)

Additionally, the Court RECOMMENDS that Plaintiff's “Petition for an Injunction to prevent The President of The United States or The Congress of The United States from passing any Laws or to Amend the United States Constitution to change or Deny United States Citizens there Second Amendment Right to have Guns or have a Militia. Denying United States Citizens our Right to protect our lives and our Families from Criminals. The Right of United States Citizens of having a Militia to protect our Constitution from Criminals that try to destroy our Constitution and our freedom and Liberty according to the Rule of Law and our American Common Law” [sic] (Dkt. No. 5) be STRIKEN.

The Court DIRECTS the Clerk of the Court to send a copy of this Report and Recommendation to all parties, including by mailing a copy of it to Plaintiff via any receipted means.

SIGNED this July 12, 2023.

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.   Plaintiff's ramblings in his petition are unclear and fail to state a claim. The story of Plaintiff's predicament and his claims is somewhat elucidated by the attachment to his petition. (See Dkt. No. 1-1.)

2.   Plaintiff also includes a self-written manifesto of the “American Common Law Constitutional Political Party” and rewritten Preamble to the Constitution and a picture of a sign on his property warning that “[t]he U.S. Constitution has been destroyed from with[in].” (See id.)

Diana Song Quiroga United States Magistrate Judge