United States District Court, W.D. Texas, Austin Division.
Macedonio Sanchez GUILLEN, Plaintiff
CASH CONSTRUCTION COMPANY, INC., National American Insurance Company, Chad Williams, Richard Pena, Defendants
Signed March 31, 2023
Attorneys & Firms
Macedonio Sanchez Guillen, Austin, TX, Pro Se.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
The undersigned submits this report and recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiff Macedonio Sanchez Guillen’s Application to Proceed In Forma Pauperis. Dkt. 2. Because Guillen is requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of his claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Guillen’s financial affidavit and determined that he is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Guillen’s request for in forma pauperis status, Dkt. 2. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination that the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Guillen is further advised that, although he has been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this complaint and is recommending Guillen’s claims be dismissed under 28 U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the District Court’s review of the recommendations made in this report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. REVIEW OF THE MERITS OF THE CLAIM
Because Guillen has been granted leave to proceed in forma pauperis, the undersigned is required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that “the court shall dismiss the case at any time if the court determines that ... 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.” 28 U.S.C. § 1915(e)(2).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 20-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986). Under § 1915(e)(2) and the applicable legal standards, even construing Guillen’s complaint liberally, the undersigned finds that his claims are frivolous and should be dismissed on that basis.
*2 Guillen’s complaints stem from an injury he received in the workplace in 2001, when he was driving a piece of construction equipment which fell on him causing him severe injury to his hip and pelvis, rendering him unable to work. Guillen seemingly tries to bring a civil rights complaint against his employer at that time, Cash Construction Company, Inc., the relevant Worker’s Compensation insurance carrier, National American Insurance Company, Chad Williams (who is the claims representative he dealt with at National American Insurance Company), and attorney Richard Pena, who allegedly represented Guillen in suing National American Insurance Company. He asserts they entered into a conspiracy to deny him benefits and requests $480,000,000.00 in damages.
First, to the extent he attempts to bring a civil rights action against these individuals and entities pursuant to 42 U.S.C. § 1983, he cannot do so. Section 1983 prescribes redress for conduct by any person who, under color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). Purely private conduct, no matter how wrongful, is not within the protective orbit of § 1983. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948). None of the individuals or businesses identified by Guillen are state actors, and Guillen has not made any allegations that show they acted together with or on behalf of a state. Therefore, Guillen’s § 1983 claims against these Defendants should be dismissed sua sponte, without prejudice, for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), 12(h)(3); Arbaugh v. Y & Y Corp., 546 U.S. 500,514 (2006); see also Tiner v. Cockrell, 756 F. App’x 482, 482 (5th Cir. 2019), cert. den., 140 S. Ct. 90 (U.S. 2019) (“Because Tiner failed to plead any facts demonstrating that the defendants acted under color of state law ... he failed to plead and establish subject matter jurisdiction....”).
Additionally, Guillen offers no other basis for subject matter jurisdiction. He has not pleaded that any of the Defendants are diverse as a basis for jurisdiction. The burden of establishing complete diversity rests with the plaintiff. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988); McGovern v. Am. Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975). This burden requires the plaintiff to specifically allege each party’s citizenship. McGovern, 511 F.2d at 654 (quoting 2A Moore’s Federal Practice ¶ 8.10, at 1662); see also Powell v. Abney, 83 F.R.D. 482, 487 (S.D. Tex. 1979). And failure to satisfy this requirement mandates dismissal. Stafford v. Mobil Oil Corp., 945 F.2d 803, 804-05 (5th Cir. 1991); Patterson v. Patterson, 808 F.2d 357, 357 (5th Cir. 1986); McGovern, 511 F.2d at 654. Guillen has not pleaded any party’s citizenship, and he has pleaded facts showing Cash Construction Company, Inc., and Pena reside in Texas, therefore pleading a lack of complete diversity. Dismissal on this basis is also appropriate.
As to Guillen’s claim against his former employer, Cash Construction Company, Inc., seeking damages, Guillen admits in his Complaint that his injury occurred in 2001 and that he was paid medical expenses for that injury by Cash Construction Company, Inc.’s Worker’s Compensation insurance carrier. Guillen admits that his injury occurred during the course of his employment, and his employer Cash Construction was a subscriber to workers’ compensation insurance. Thus, any cause of action related to Guillen’s work injury arises under the Texas Workers’ Compensation Act. The TWCA “provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” 102 F.3d 199, 203 (5th Cir. 1997); Tex. Lab. Code § 408.001(a) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”) Thus, Guillen cannot make out a claim against Cash Construction for injuries sustained in the course of his employment in 2001.
*3 Guillen also makes claims against National American Insurance Company, alleging he was not paid sufficiently for his workers’ compensation claims and denied medical care payments related to his 2001 accident, and claims adjuster Chad Williams for denying him medical benefits as late as 2023. A federal court only has subject matter jurisdiction over a workers’ compensation denial of benefits’ case “so long as complete diversity and the requisite amount in controversy are established.” Rubell v. Gen. Dynamics Corp., No. 7:10-CV-00176-O, 2011 WL 477175, at *1 (N.D. Tex. Jan. 20, 2011). As stated above, Guillen has not adequately pleaded diversity and therefore cannot bring a claim against the workers’ compensation insurer.
Also, Guillen has not pleaded that he has exhausted his administrative remedies with regard to any denial of benefits, which is required under Texas Labor Code § 410.251. Texas courts, both federal and state, have found that “[a] party must exhaust their administrative remedies and there must be a final decision of the [Texas Workers’ Compensation Commission’s] Appeals Panel before a party may seek a judicial remedy.” Evaro v. Cont’l Cas. Co., 118 F. App’x 867, 870 (5th Cir. 2005) (citing Cervantes v. Tyson Foods, Inc., 130 S.W.3d 152, 157 (Tex. App.—El Paso 2003, pet. denied)); see also Hinkley v. Envoy Air, Inc., 968 F.3d 544, 552 (5th Cir. 2020) (“[T]he Texas Labor Code’s administrative-exhaustion requirement is ... mandatory and, therefore, requires Texas courts to dismiss the Texas Labor Code claim where defendant shows it has not been satisfied.”); LaBlanche v. Spring ISD, Civ. Action No. H-16-3103, 2017 WL 6409030, at *3 (S.D. Tex. June 22, 2017) (holding that “[a] plaintiff must both exhaust her administrative remedies, and there must be a final DWC appeals panel decision” for judicial review to be available); Rawls v. Old Republic Gen. Ins. Group, Inc., 489 F. Supp. 3d 646, 654-55 (S.D. Tex. 2020) (same). A court must therefore dismiss a case if the plaintiff has not exhausted the available administrative remedies pursuant to the Texas Workers’ Compensation Act because the trial court has no jurisdiction over the matter. See In re Crawford & Co., 458 S.W.3d 920, 929 (Tex. 2015). The undersigned recommends the District Court dismiss Guillen’s claims on this additional basis.
Lastly, Guillen sues his former attorney Richard Pena, whom he hired in 2003 to dispute his workers’ compensation benefits. Guillen asserts that he contacted Pena in 2006, and was informed Pena had lost his case. Guillen argues that Pena somehow defrauded him and has formed a conspiracy with the insurer to deny him benefits. In Texas, “[t]he statute of limitations for legal malpractice is two years after a cause of action accrues.” Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019); see Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Applying the discovery rule, by his own admission, Guillen was aware Pena had lost his case in 2006, and thus any malpractice claim is barred by the statute of limitations.
Because the court lacks jurisdiction over his claims, Guillen’s complaint should be dismissed.
III. ORDER AND RECOMMENDATION
The undersigned hereby GRANTS Guillen’s Application to Proceed In Forma Pauperis. Dkt. 2. The undersigned RECOMMENDS the District Court DISMISS Guillen’s cause of action without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). The referral of this case to the Magistrate Judge is CANCELED.
The parties may file objections to this Report and Recommendation. 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. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).