Opinion

Derise v. District Court

Court
District Court, W.D. Louisiana
Filed
Oct 20, 2021
Cited by
0 cases
Authority
More cited than 22.6%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

BEAU A. DERISE CIVIL ACTION NO. 6:21-CV-03669

VERSUS JUDGE JUNEAU

UNITED STATES DISTRICT COURT, MAGISTRATE JUDGE HANNA

ALEXANDRIA DIVISION

REPORT AND RECOMMENDATION

Plaintiff Beau A. Derise is proceeding in this lawsuit without the assistance

of legal counsel and in forma pauperis. His complaint was screened under 28 U.S.C.

§ 1915(e)(2)(B) to determine whether his claims are frivolous, malicious, or fail to

state a claim upon which relief may be granted. For the reasons fully explained

below, it is recommended that this lawsuit should be dismissed for failure to state a

claim upon which relief may be granted, and it is further recommended that Mr.

Derise should be barred from filing any further lawsuits in this court without first

obtaining leave to do so.

Background

In his complaint, Mr. Derise alleged that an Allstate representative named

John Henrich is a terrorist who caused ISIS broadcasting equipment to be installed

inside the United States courthouse in Alexandria, Louisiana. Mr. Derise alleged

that this was done to support federal fraud and terrorism and to protect Allstate and

other corporations from lawsuits filed by Mr. Derise in 2018 and 2020. Mr. Derise

also alleged that micro-transmitters were placed inside his ears and have not yet been

surgically removed. He seeks to recover “68 zillion dollars.”1

Law and Analysis

A. Leniency for Pro Se Litigants

Mr. Derise is not represented by counsel. The pleadings of pro se litigants are

held to a more lenient standard than those of attorneys2 and are construed liberally

to prevent a loss of rights that might result from inartful expression.3 However, pro

se plaintiffs are required to plead factual allegations that rise above a speculative

level,4 and courts should not create causes of action where none exist.5 A pro se

litigant should ordinarily be offered an opportunity to amend his complaint before it

is dismissed,6 but leave to amend is not required if an amendment would be futile,

or if, in other words, an amended complaint would still fail to survive a Rule 12(b)(6)

1 Rec. Doc. 1 at 5.

2 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).

3 Cledera v. United States, 834 Fed. App’x 969, 972 (5th Cir. 2021) (citing Andrade v.

Gonzales, 459 F.3d 538, 543 (5th Cir. 2006)).

4 Chhim v. University of Texas at Austin, 836 F.3d 467, 469 (5th Cir. 2016); see, also, Taylor

v. Books A Million, Inc., 296 F.3d at 378.

5 Cledera v. United States, 834 Fed. App’x at 972); Smith v. CVS Caremark Corp., No. 3:12-

CV-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013).

6 Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020); Brewster v. Dretke, 587

F.3d 764, 767-68 (5th Cir. 2009).

motion to dismiss.7 Furthermore, pro se litigants have “no license to harass others,

clog the judicial machinery with meritless litigation, and abuse already overloaded

court dockets.”8 Litigants who abuse the judicial process are “not entitled to sue and

appeal without paying the normal filing fees – indeed, are not entitled to sue and

appeal, period.”9

B. Screening of Complaints Filed In Forma Pauperis

Mr. Derise filed a motion for in forma pauperis status along with his

complaint,10 which was granted.11 An indigent person may bring an in forma

pauperis action in federal court without paying costs.12 District courts screen such

complaints and may dismiss them at any time if the allegation of poverty is untrue

or if 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.13 A dismissal “at any time” includes dismissal at the initiation of the action,

7 Marucci Sports, L.L.C. v. NCAA, 751 F.3d 368, 378 (5th Cir. 2014).

8 Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

9 Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989).

10 Rec. Doc. 2.

11 Rec. Doc. __.

12 28 U.S.C. § Section 1915(a)(1).

13 28 U.S.C. § 1915(e)(2). See, also, Smilde v. Snow, 73 Fed. App'x 24, 25 (5th Cir. 2003).

before the defendant has appeared.14 This “discourage[s] the filing of, and waste of

judicial and private resources upon, baseless lawsuits”15 and “spare[s] prospective

defendants the inconvenience and expense of answering such complaints.”16 A court

must not dismiss a complaint simply because the facts presented by the plaintiff

appear unlikely.17 However, a complaint must allege a set of facts sufficient “to state

a claim. . . that is plausible on its face.”18 Therefore, a district court may review a

complaint and dismiss sua sponte those claims premised on meritless legal theories

and those that clearly lack any basis in fact.19

District courts are vested with especially broad discretion in determining

whether a dismissal for frivolousness is warranted in cases brought by plaintiffs in

forma pauperis,20 and dismissal is appropriate if a complaint has no “realistic chance

14 Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

15 Neitzke v. Williams, 490 U.S. 319, 327 (1989).

16 Neitzke v. Williams, 490 U.S. at 324.

17 Denton v. Hernandez, 504 U.S. 25, 33 (1992).

18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

19 Denton v. Hernandez, 504 U.S. at 32 (citing Neitzke v. Williams, 490 U.S. at 327).

20 Green v. McKaskle, 788 F.2d at 1119.

of ultimate success”21 or is “clearly baseless.”22 A complaint is frivolous if it “lacks

an arguable basis either in law or in fact.”23 A complaint lacks an arguable basis in

law when it is “based on an indisputably meritless legal theory,”24 while factually

frivolous claims are those in which the facts alleged are clearly baseless, fanciful,

fantastic, delusional, irrational, or wholly incredible.25

In determining whether a complaint filed by a plaintiff proceeding in forma

pauperis fails to state a claim, the court should apply the same standards governing

dismissals under Fed. R. Civ. P. 12(b)(6).26 Thus, the court must limit itself to the

contents of the pleadings, accept all well-pleaded facts as true, view the facts in a

light most favorable to the plaintiff,27 and determine whether the plaintiff has plead

“enough facts to state a claim to relief that is plausible on its face.”28

21 George v. King, 837 F.2d 705, 707 (5th Cir. 1988) (quoting Green v. McKaskle, 788 F.2d

at 1120).

22 Denton v. Hernandez, 504 U.S. at 32.

23 Brewster v. Dretke, 587 F.3d at 767; Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).

24 Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Talib v. Gilley, 138 F.3d at 213.

25 Talib v. Gilley, 138 F.3d at 213 (clearly baseless); Horton v. Cockrell, 70 F.3d 397, 400

(5th Cir. 1995) (irrational or wholly incredible); Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995)

(fanciful, fantastic, delusional).

26 Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

27 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).

28 Bell Atlantic v. Twombly, 550 U.S. at 570.

C. Available Sanctions

Litigants who file frivolous pleadings may be sanctioned. Under Fed. R. Civ.

P. 11(b), litigants have an obligation to make only nonfrivolous arguments to support

their factual contentions with evidentiary support. Violations of this rule subject a

litigant to sanctions, including non-monetary ones, with the goal of “deter[ring]

repetition of the conduct.”29 This rule gives district courts wide discretion in

determining what sanctions are appropriate.30 A court may order a party to show

cause why conduct has not violated Rule 11 and impose sanctions sua sponte.31

Federal courts also have the inherent power to sanction abusive litigation

practices “to protect the efficient and orderly administration of justice and. . . to

command respect for [their] orders, judgments, procedures, and authority.”32 Within

this inherent authority is the ability to issue a prefiling injunction to deter vexatious

filings with the court.33 “A district court has jurisdiction to impose a pre-filing

injunction to deter vexatious, abusive, and harassing litigation.”34 If issued, a

29 Fed. R. Civ. P. 11(c)(4).

30 Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001).

31 Fed. R. Civ. P. 11(c)(3).

32 In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).

33 Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 189 (5th Cir. 2008).

34 Baum v. Blue Moon Ventures, LLC, 513 F.3d at 187.

prefiling injunction must be tailored to preserve the legitimate rights of litigants

while also protecting the courts and innocent parties.35 When determining whether

the imposition of a prefiling injunction would be appropriate, the court must weigh

all relevant circumstances, including four main factors:

(1) the party's history of litigation, in particular whether he has filed

vexatious, harassing, or duplicative lawsuits; (2) whether the party had

a good faith basis for pursuing the litigation, or simply intended to

harass; (3) the extent of the burden on the courts and other parties

resulting from the party's filings; and (4) the adequacy of alternative

sanctions.36

Notice and a hearing are required if the district court sua sponte imposes a prefiling

injunction.37

D. The Complaint Does Not State a Plausible, Nonfrivolous Claim

In this lawsuit, Mr. Derise asserted claims that are clearly baseless. He did

not articulate a legal theory with any plausible merit, nor did he articulate any

factually plausible claims. His complaint lacks both an arguable basis in law and an

arguable basis in fact and is, therefore, frivolous.

Mr. Derise did not allege facts supporting his conclusory contention that an

Allstate representative installed ISIS broadcasting equipment in the Alexandria

35 Baum v. Blue Moon Ventures, LLC, 513 F.3d at 187; Farguson v. MBank Houston, N.A.,

808 F.2d 358, 360 (5th Cir. 1986).

36 Baum v. Blue Moon Ventures, LLC, 513 F.3d at 189.

37 Baum v. Blue Moon Ventures, LLC, 513 F.3d at 189.

courthouse nor did he allege facts supporting his conclusory contention that someone

implanted transmitters in his ears. To the contrary, Mr. Derise’s complaint contains

irrational and nonsensical allegations, lacking a concrete factual basis sufficient to

establish a nonfrivolous claim. His allegations may be characterized as fanciful,

fantastic, and delusional, and the complaint contains insufficient factual matter to

support an inference that the defendant is liable for the alleged misconduct.

Therefore, Mr. Derise failed to state a plausible claim on which relief can be granted.

Furthermore, Mr. Derise’s complaint lacks a valid legal premise. He asserted

a claim against the court, indicating that his claim arises under 42 U.S.C. § 1983 and

is against federal officials. But no federal officials are named as defendants in the

suit. The only person identified in the complaint is John Henrich. Mr. Henrich is

alleged to be an Allstate representative, is not alleged to be a government actor, and

was not named as a defendant. Critically, there can be no Section 1983 liability

unless the plaintiff has suffered a constitutional violation at the hands of a state

actor.38 But Mr. Derise neither sued a state actor nor alleged a constitutional

violation. Therefore, he failed to articulate a potentially meritorious legal theory.

38 See, e.g., Doe ex rel. Magee v. Covington County School Dist. ex rel. Keys, 675 F.3d 849,

867 (5th Cir. 2012).

Finally, this Court is persuaded that allowing Mr. Derise to amend his

complaint would be futile. He has now filed several complaints,39 many of which

seem to begin with an alleged 2015 automobile accident, allude to terrorism, and

decry the presence of ISIS-related broadcasting equipment in various locations. In

essence, he has already made multiple attempts to articulate his claims, all of which

are difficult to comprehend and lack plausibility. In April 2021, he was offered an

opportunity to clarify his complaints by testifying in court at a Spears hearing, but

he failed to appear.40 Therefore, another attempt at a clear articulation of his claims

is unnecessary. For these reasons, this Court recommends that Mr. Derise’s

complaint should be dismissed for failure to state a claim on which relief can be

granted.

Furthermore, due to Mr. Derise's persistently vexatious litigation history and

his unabated filing of baseless lawsuits, this Court recommends that Mr. Derise

should be sanctioned and barred from proceeding in forma pauperis in any civil

action in this court without first obtaining leave of court to do so. Mr. Derise has

filed numerous lawsuits involving largely duplicative allegations, asserting frivolous

claims against a variety of defendants, based on untenable legal predicates. These

39 By this Court’s latest tally, Mr. Derise has filed thirty-four lawsuits in this division of the

court this year.

40 See Rec. Doc. 4 in Civil Action No. 21-cv-00069, which is the transcript of the proceedings

held on April 8, 2021 before this Court.

lawsuits constitute an unnecessary burden on the court, and Mr. Derise has not

heeded prior warnings to stop filing frivolous suits.41 There apparently is no

alternative sanction. Accordingly, the relevant factors weigh in favor of barring Mr.

Derise from initiating lawsuits in this court absent permission to do so.

Conclusion

For the foregoing reasons,

IT IS FURTHER RECOMMENDED that Mr. Derise’s complaint should be

dismissed for failure to state a plausible, nonfrivolous claim on which relief can be

granted; and

IT IS FURTHER RECOMMENDED that Mr. Derise should be ordered to

show cause in open court why he should not be placed on the list of

sanctioned/barred litigants for this district, so that he can be barred from filing any

action in the United States District Court for the Western District of Louisiana

without first obtaining the approval and authorization of the chief judge.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b),

parties aggrieved by this recommendation have fourteen days from service of this

report and recommendation to file specific, written objections with the Clerk of

41 See, e.g., Rec. Doc. 7 at 1-2 in Civil Action No. 21-cv-00069 (“as Mr. Derise’s complaints

fail to state any plausible, nonfrivolous claims on which relief can be granted, he is hereby

WARNED that the filing of any additional frivolous lawsuits will result in his being ordered to

show cause why he should not be placed on the list of sanctioned/barred litigants. . . .”).

Court. A party may respond to another party’s objections within fourteen days after

being served with of a copy of any objections or responses to the district judge at the

time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in the report and recommendation within

fourteen days following the date of its service, or within the time frame authorized

by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual

findings or the legal conclusions accepted by the district court, except upon grounds

of plain error.*”

Signed at Lafayette, Louisiana, this 20th day of October 2021.

lie

UNITED STATES MAGISTRATE JUDGE

See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5 Cir. 1996) (en

banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).

11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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