IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JOSEPH E. NAGY, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1627-X-BN 

 § 

KEVIN MCGRATH and ELIANA § 

MCGRATH § 

 § 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Joseph E. Nagy returns to this Court pro se, see Nagy v. McGrath, No. 

3:22-cv-1155-K-BN, 2022 WL 2251042 (N.D. Tex. June 1, 2022), rec. accepted, 2022 

WL 2237502 (N.D. Tex. June 22, 2022) (Nagy I), realleging claims based on the facts 

alleged in Nagy I but, this time, just against his ex-wife (Defendant Eliana McGrath) 

and her current husband (Defendant Kevin McGrath) under 42 U.S.C. §§ 1981 and 

1985 and theories of “wrongful child support” and “mental anguish.” Dkt. No. 3. 

Because Nagy again moves for leave to proceed in forma pauperis (IFP), see

Dkt. No. 4, United States District Judge Brantley Starr referred Nagy’s latest lawsuit 

to the undersigned United States magistrate judge for pretrial management under 

28 U.S.C. § 636(b) and a standing order of reference. 

The Court will grant Nagy leave to proceed IFP through a separate order. And 

the undersigned enters these findings of fact, conclusions of law, and recommendation 

that the Court should dismiss this lawsuit for the reasons and to the extent set out 

below without allowing leave to amend and enter an appropriate sanctions warning. 

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Legal Standards 

A district court is required to screen a civil action filed IFP and may summarily 

dismiss that action, or any portion of it, if the plaintiff, for example, fails to state a 

claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). “The language 

of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6).” 

Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). 

Even outside the IFP context, “[i]t is well-established that a district court may 

dismiss a complaint on its own motion under [Rule] 12(b)(6) for failure to state a claim 

upon which relief may granted.” Starrett v. U.S. Dep’t of Defense, No. 3:18-cv-2851-

M-BH, 2018 WL 6069969, at *1 (N.D. Tex. Oct. 30, 2018) (citing Carroll v. Fort James 

Corp., 470 F.3d 1171 (5th Cir. 2006) (citing, in turn, Shawnee Int’l, N.V. v. Hondo 

Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984))), rec. accepted, 2018 WL 6068991 (N.D. 

Tex. Nov. 20, 2018), aff’d, 763 F. App’x 383 (5th Cir.) (per curiam), cert. denied, 140 

S. Ct. 142 (2019). 

A district court may exercise its “inherent authority ... to dismiss a complaint 

on its own motion ... ‘as long as the procedure employed is fair.’” Gaffney v. State Farm 

Fire & Cas. Co., 294 F. App’x 975, 977 (5th Cir. 2008) (per curiam) (quoting Carroll, 

470 F.3d at 1177 (quoting, in turn, Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 

1998)); citation omitted). And the United States Court of Appeals for Fifth Circuit has 

“suggested that fairness in this context requires both notice of the court’s intention 

to dismiss sua sponte and an opportunity to respond.” Id. (cleaned up; quoting Lozano 

v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007) (quoting, in turn, Carroll, 

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470 F.3d at 1177)); accord Carver v. Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (“The 

broad rule is that ‘a district court may dismiss a claim on its own motion as long as 

the procedure employed is fair.’ More specifically, ‘fairness in this context requires 

both notice of the court’s intention and an opportunity to respond’ before dismissing 

sua sponte with prejudice.” (citations omitted)). 

Notice is provided through these findings, conclusions, and recommendations 

(the FCR), and the period to file objections to the FCR (further explained below) 

affords an opportunity to respond. See, e.g., Starrett, 2018 WL 6069969, at *2 

(citations omitted). 

Dismissal for failure to state a claim under either Rule 12(b)(6) or Section 

1915(e)(2)(B)(ii) “turns on the sufficiency of the ‘factual allegations’ in the complaint,” 

Smith v. Bank of Am., N.A., 615 F. App’x 830, 833 (5th Cir. 2015) (per curiam) 

(quoting Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)), as 

neither the IFP statute nor the Federal Rules of Civil Procedure “countenance 

dismissal of a complaint for imperfect statement of the legal theory supporting the 

claim asserted,” Johnson, 574 U.S. at 11. 

Instead, plaintiffs need only “plead facts sufficient to show” that the claims 

asserted have “substantive plausibility” by stating “simply, concisely, and directly 

events” that they contend entitle them to relief. Id. at 12 (citing FED. R. CIV. P. 8(a)(2)-

(3), (d)(1), (e)). 

“A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Id. And “[a] claim for relief is 

implausible on its face when ‘the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc. v. 

FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also 

Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 

2019) (“‘Determining whether a complaint states a plausible claim for relief’ is ‘a 

context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense.’” (quoting Iqbal, 556 U.S. at 679; citing Robbins v. 

Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (“[T]he degree of specificity 

necessary to establish plausibility and fair notice, and therefore the need to include 

sufficient factual allegations, depends on context.”))). 

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, a plaintiff must allege more than labels and 

conclusions, and, while a court must accept all of a plaintiff’s allegations as true, it is 

“not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A 

threadbare or formulaic recitation of the elements of a cause of action, supported by 

mere conclusory statements, will not suffice. See id. 

This rationale has even more force here, as “[p]ro se complaints receive a 

‘liberal construction.’ Even so, ‘mere conclusory allegations on a critical issue are 

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insufficient.’” Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 494 (5th Cir. 2021) (quoting 

Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018), then United States v. Woods, 

870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)). And “liberal construction does not 

require that the Court ... create causes of action where there are none.” Smith v. CVS 

Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 

2013). “To demand otherwise would require the ‘courts to explore exhaustively all 

potential claims of a pro se plaintiff’” and would “‘transform the district court from its 

legitimate advisory role to the improper role of an advocate seeking out the strongest 

arguments and most successful strategies for a party.’” Jones v. Mangrum, No. 3:16-

cv-3137, 2017 WL 712755, at *1 (M.D. Tenn. Feb. 23, 2017) (quoting Beaudett v. City 

of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). 

Analysis 

I. True res judicata principles require the dismissal of this lawsuit 

under the malicious prong of the IFP statute, 28 U.S.C. § 

1915(e)(2)(B)(i). 

“A complaint is malicious if it duplicates claims involving the same series of 

events and allegations of many of the same facts asserted by the same plaintiff in 

prior or pending litigation.” Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir. 

2018) (per curiam) (citing, as applicable, Pittman v. Moore, 980 F.2d 994, 994-95 (5th 

Cir. 1993)); see also Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019) (“We have 

repeatedly stated that a claim qualifies as malicious if it is virtually identical to and 

based on the same series of events as a claim previously brought by the plaintiff.” 

(citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988))). 

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And, “[r]eading Pittman and Wilson[ v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 

1989),] in conjunction, it is clear that the Court may dismiss an action as malicious 

when the complaint raises claims that would be barred by the principles of res 

judicata, whether or not the prior litigation has ended unsuccessfully for the 

plaintiff.” McGill v. Juanita Kraft Postal Serv., No. 3:03-cv-1113-K, 2003 WL 

21355439, at *1 (N.D. Tex. June 6, 2003), rec. accepted, 2003 WL 21467745 (N.D. Tex. 

June 18, 2003). 

“Generally, res judicata must be pled as an affirmative defense” under Federal 

Rule of Civil Procedure 8(c)(1), but the first of “two limited exceptions” to this rule 

applies here, an exception that “permits ‘[d]ismissal by the court sua sponte on res 

judicata grounds ... in the interest of judicial economy where both actions were 

brought before the same court.’” McIntyre v. Ben E. Keith Co., 754 F. App’x 262, 264-

65 (5th Cir. 2018) (per curiam) (quoting Mowbray v. Cameron Cnty., 274 F.3d 269, 

281 (5th Cir. 2001)). 

“The preclusive effect of a prior federal court judgment is controlled by federal 

res judicata rules.” Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000) 

(citations omitted); accord Meza v. Gen. Battery Corp., 908 F.2d 1262, 1265 (5th Cir. 

1990). Those rules bar 

“the litigation of claims that either have been litigated or should have 

been raised in an earlier suit.” Test Masters Educ. Servs., Inc. v. Singh, 

428 F.3d 559, 571 (5th Cir. 2005). In the Fifth Circuit, res judicata is 

appropriate if four conditions are met: (1) the parties in the subsequent 

action are identical to, or in privity with, the parties in the prior action; 

(2) the judgment in the prior case was rendered by a court of competent 

jurisdiction; (3) there has been a final judgment on the merits; and (4) 

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the same claim or cause of action is involved in both suits. Id.; see also 

Ellis, 211 F.3d at 937. 

Chalmers v. City of Dall., No. 3:14-cv-36-N, 2014 WL 7174289, at *6 (N.D. Tex. Dec. 

16, 2014) (citation modified). 

The first three conditions are easily met here: as between Nagy I and this 

action, the parties are the same or in privity, and this district court entered a final 

judgment dismissing the prior case with prejudice. 

Taking up the fourth condition, courts in this circuit use “a ‘transactional test,’” 

under which “[t]he critical issue is whether the two suits are based on the ‘same 

nucleus of operative facts.’” Chalmers, 2014 WL 7174289, at *6 (quoting Test Masters, 

428 F.3d at 571); see Test Masters, 428 F.3d at 571 (“Under the transactional test, a 

prior judgment’s preclusive effect extends to all rights of the plaintiff with respect to 

all or any part of the transaction, or series of connected transactions, out of which the 

original action arose.” (citation omitted)); see also Snow Ingredients, Inc. v. 

SnoWizard, Inc., 833 F.3d 512, 522 (5th Cir. 2016) (“True res judicata bars recovery 

when a party seeks to relitigate the same facts even when the party argues a novel 

legal theory.” (citing Agrilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 

665 (5th Cir. 1994))); Alexander v. Hood for State of Miss., No. 3:16-cv-00202-GHDJMV, 2017 WL 3585470, at *3 (N.D. Miss. Aug. 16, 2017) (“[T]he transactional test is 

[ ] met ... [if] the claims could or should have been brought in the first action. From 

Plaintiff’s factual allegations in all three cases, it is clear that Plaintiff had notice of 

the facts giving rise to these claims at the time of the first case and that the Section 

1983 claims could have been ruled on by that Court.”). 

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The claims here emanate from the same nucleus of operative facts as Nagy I. 

II. In the alternative, the Court should dismiss the federal claims 

with prejudice and decline to exercise supplemental 

jurisdiction over the remaining state law claims. 

Starting with Nagy’s Section 1981 claim against Ms. McGrath, just as in Nagy 

I, this claim is not plausible because it includes no allegation as to race. 

[42 U.S.C.] § 1981(a) forbids racial discrimination in the making and 

enforcement of private contracts, regardless of the race of aggrieved 

party. To succeed with a § 1981 discrimination claim, a plaintiff must 

establish that (1) he or she is a member of a racial minority; (2) the 

defendant intended to discriminate on the basis of race; and (3) the 

discrimination concerned at least one of the activities enumerated in the 

statute, such as the making of a contract. 

Sheffield v. Lee, No. 3:08-cv-1102-L, 2008 WL 4966624, at *5 (N.D. Tex. Nov. 18, 2008) 

(citations omitted). 

Nagy also alleges that the McGraths conspired to interfere with his civil rights, 

in violation of 42 U.S.C. § 1985. But to allege a plausible claim under Section 1985 

requires allegations of state action. See Cong. of Racial Equal. v. Clemmons, 323 F.2d 

54, 62 (5th Cir. 1963) (“A third fatal weakness in the plaintiffs’ case is that the 

defendants are private persons. It is still the law that the Fourteenth Amendment 

and the statutes enacted pursuant to it, including 42 U.S.C.A. § 1985, apply only 

when there is state action.”); Lindsey v. City of Gulport, Miss., No. 1:08CV637 LGRHW, 2010 WL 11530443, at *4 (S.D. Miss. June 18, 2010) (“The elements necessary 

to state a cause of action under” Section 1985 includes “action by the defendants 

under color of state law or authority.” (citing Carroll v. Andrews, 438 F.2d 1221, 1222 

(5th Cir. 1971))). 

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“The traditional definition of acting under color of state law requires that the 

defendant ... have exercised power ‘possessed by virtue of state law and made possible 

only because the wrongdoer is clothed with the authority of state law.’” Gomez v. 

Galman, 18 F.4th 769, 775 (5th Cir. 2021) (per curiam) (quoting West v. Atkins, 487 

U.S. 42, 49 (1988) (quoting, in turn, United States v. Classic, 313 U.S. 299, 326 

(1941))). But Nagy fails to plead facts to show that the McGraths acted under color of 

state law. Consequently, he has not alleged a plausible claim under Section 1985 

against them. 

Finally, as to the remaining claims under state law – for “wrongful child 

support” and “mental anguish” – the Court should decline to exercise supplemental 

jurisdiction over those claims. 

To determine whether it should “relinquish jurisdiction over pendent state law 

claims,” a court looks to “statutory factors set forth by 28 U.S.C. § 1367(c)” – “(1) 

whether the state claims raise novel or complex issues of state law; (2) whether the 

state claims substantially predominate over the federal claims; (3) whether the 

federal claims have been dismissed; and (4) whether there are exceptional 

circumstances or other compelling reasons for declining jurisdiction” – as well as “the 

common law factors of judicial economy, convenience, fairness, and comity” set forth 

by Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Enochs v. Lampasas 

Cnty., 641 F.3d 155, 158-59 (5th Cir. 2011); see also IntegraNet Physician Res., Inc. v. 

Texas Indep. Providers, L.L.C., 945 F.3d 232, 241-43 (5th Cir. 2019), overruled on 

other grounds by Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) 

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(en banc). As “no single factor is dispositive,” Mendoza v. Murphy, 532 F.3d 342, 346 

(5th Cir. 2008), “[t]he overall balance of the statutory factors is important,” Enochs, 

641 F.3d at 159 (citation omitted). 

Here, that balance favors relinquishing jurisdiction over the remaining state 

law claims to allow Nagy to pursue those claims in a state forum if he so chooses. Cf. 

Escalante v. Lidge, 34 F.4th 486, 491 (5th Cir. 2022) (“‘[T]he domestic relations 

exception encompasses only cases involving the issuance of a divorce, alimony, or 

child custody decree.’ [The United States Supreme Court, in Ankenbrandt v. 

Richards, 504 U.S. 689 (1992),] noted that ‘in certain circumstances’ a court might 

apply the exception more broadly based on ‘the abstention principles developed in 

Burford v. Sun Oil Co., 319 U.S. 315 (1943).’ Specifically, abstention might be 

appropriate where a suit presented difficult and important questions of state law and 

‘the suit depended on a determination of the status of the parties.’” (quoting 

Ankenbrandt, 504 U.S. at 704, 705, 706; footnote omitted)). 

III. The Court should issue an appropriate sanctions warning. 

“[T]he judicial system is generally accessible and open to all individuals.” 

Kaminetzky v. Frost Nat’l Bank of Hous., 881 F. Supp. 276, 277 (S.D. Tex. 1995). But 

“district courts have an obligation to protect the orderly administration of justice and 

prevent abuse of the court’s process by frivolous and vexatious litigants[, which 

means p]ro se litigants have ‘no license to harass others, clog the judicial machinery 

with meritless litigation, and abuse already overloaded court dockets.’” Ruston v. 

Dall. Cnty., Tex., No. 3:07-cv-1076-D, 2008 WL 958076, at *2 (N.D. Tex. Apr. 9, 2008) 

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

For the reasons set out above, the Court should warn Nagy that, should he 

continue to pursue frivolous or malicious lawsuits, this Court will bar him from 

proceeding either in forma pauperis or pro se in any action in this Court – whether 

filed here; filed in state court and removed to this Court; or filed in another federal 

court and transferred to this Court – without first obtaining leave of the Court in 

writing. 

Recommendation

The Court should dismiss Plaintiff Joseph E. Nagy’s lawsuit as malicious or, 

in the alternative, dismiss his federal claims with prejudice and decline to exercise 

supplemental jurisdiction over the remaining state law claims. And the Court should 

issue an appropriate sanctions warning. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

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factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: August 5, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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