Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MAR iM 9:25 AUSTIN DIVISION
WEST P y ANTHONY KENNEY, Plaintiff, Case No. A-15-CA-74-SS
-vs- DEPARTMENT OF PUBLIC SAFETY,
Defendant.
ORDER BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically the Report and Recommendation of the United States Magistrate Judge [#3]. Plaintiff Anthony Kenney filed Notice of Appeal [#5], which the Court construes as an objection the Report and Recommendation. Having reviewed the documents, the governing law, and the file as whole, the Court now enters the following orders DISMISSING this action.
All matters in this case were referred to United States Magistrate Judge Andrew W. Austin for report recommendation pursuant U.S.C. 636(b) and Rule of Appendix C of the Local Court Rules the United States District Court for the Western District of Texas, Local Rules for the Assignment Duties United States Magistrate Judges. Having granted Kenney leave to proceed forma pauperis (IFP), the Magistrate Judge duly performed review his claims pursuant to 28 U.S.C. 1915(e) and found they should be dismissed. Kenney is entitled to de novo review the portions the Magistrate report which he filed specific objections. 28 U.S.C. 636(b)(1). All other review plain error. Starns Andrews, 524 F.3d 612, 617 (5th
'I Cir. 2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate recommendation.
Analysis As Keimey is proceeding IFP, the Court must screen his complaint determine if it is "frivolous or malicious" or "fails state claim on which relief may be granted." 28 U.s.c. 1915(e)(2)(B)(i)(ii). A filed IFP maybe dismissed as frivolous if it lacks an arguable basis in law or fact. Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). A complaint is frivolous when the facts alleged are "clearly baseless," such as where they describe fantastic or delusional scenarios, or when the legal theory upon which complaint relies "indisputably meritless," such as where the complaint alleges the violation a legal interest which clearly does not exist. Edleiy v. Hockley Cnz'y. Comm 'rs Court, 589 F. App'x 664,666-67(5th Cir. 2014); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). "A district court may dismiss under for failure if it is 'patently obvious' that plaintiff could not prevail on the facts alleged, and allowing him an opportunity amend his complaint would be futile." Trujillo v. Williams, F.3d 1210, 1224 (10th Cir. 2006). Dismissal under 1915(e) may occur at anytime, before or after service process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
Prose complaints are liberally construed favor the plaintiff. Haines v. Kerner, U.s. 519, 520-21 (1972). However,pro se status does not offer claimant "an impenetrable shield, for one acting pro se has no license harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson MbankHous. NA., F.2d 358, 359 (5th Cir. 1986).
-2- Here, the Court agrees with the Magistrate Judge dismissal is appropriate. While his is difficult to follow, it appears Kenney is complaining the Texas Department Public Safety will not expunge two very old convictions for burglary theft from his record, which has prevented Kenney from applying jobs with the federal government or receiving commercial driver's licence. As the Magistrate Judge observed, the complaint contains no cause action. In his objection to the Report and Recommendation, Kenney states "[t]his claim is for 2nd Admendments [sic] rights and to expungement [sic] records the NICS appeal FBI records." Kenney's complaint, however, has nothing do with right keep and bear arms, and expungement records is not cause action. Accordingly, it is patently obvious Kenney cannot prevail on the facts alleged, and dismissal for failure is appropriate.
Conclusion
Accordingly,
IT IS ORDERED that the Report and Recommendation of the United States Magistrate Judge [#3] ACCEPTED; and
IT IS FiNALLY ORDERED that this action DISMISSED WITHOUT t PREJUDICE.
SIGNED this the /$ day March 2015.
UNITED STATES DISTRICT JUDGE disrnrrokba.frrn