IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONALD GENE BLANTON, §

#1307891, §

PLAINTIFF, §

§

V. § CIVIL CASE NO. 3:22-CV-1411-B-BK

§

DIRECTOR, TDCJ-CID §

DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se civil action was referred 

to the United States magistrate judge for case management, including the issuance of findings 

and a recommended disposition where appropriate. Upon review of the relevant pleadings and 

applicable law, this action should be summarily DISMISSED WITH PREJUDICE as frivolous 

and for failure to state a claim. 

I. BACKGROUND

In 2005, Donald Gene Blanton was convicted of possession of cocaine and tampering 

with evidence and was sentenced to 20 years’ and life imprisonment, respectively. Blanton v. 

State, Nos. 23,078-86 and 23,592-86 (86th Jud. Dist. Ct., Kaufman Cnty., Tex. 2005). He 

unsuccessfully sought state and federal habeas relief, and the Court of Appeals for the Fifth 

Circuit denied him leave to file three successive habeas petitions. See Blanton v. Davis, No. 

3:17-CV-1453-G (BH), 2017 WL 2729106, at *1 (N.D. Tex. June 5, 2017), R & R adopted, 2017 

WL 2719351 (N.D. Tex. June 23, 2017) (summarizing filing history), leave to file denied, No. 

17-10714, Civ. Doc. 17 (5th Cir. Aug. 14, 2017). As a result of his repetitive successive 

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petitions, the Court of Appeals also ordered Blanton to pay a sanction of $100, which remains 

unpaid, and barred him “from filing in this court or any court subject to this court’s jurisdiction 

any challenge to his instant convictions until the sanction is paid, unless he obtains leave of the 

court in which he seeks to file such challenge.” Civ. Doc. 17 at 2-3. 

On June 30, 2022, Blanton filed—without obtaining leave of Court—a pleading titled 

Criminal Complaint Filed Against Texas Court of Criminal Appeals Chief Judge Sharon Keller, 

18 U.S.C. § 1001, which appears to be an attempted end-run around the Fifth Circuit’s sanction 

order. See Doc. 2. Blanton asserts scurrilous and delusional allegations against Judge Keller. 

He contends she participated in a “criminal forgery scandal against [Blanton] who is a totally 

actually innocent man in prison . . . .” Doc. 2 at 1. Blanton avers that Keller knew that a 

February 27, 2019 Motion for Leave to File Original Application for Writ of Habeas Corpus was 

forged. Doc. 2 at 4-5. As such, he argues she violated the U.S. Constitution and 18 U.S.C. § 

1001. Blanton requests that the Court issue an order to the Texas Court of Criminal Appeals and 

Judge Keller to (1) “submit a sworn affidavit responding to [his] claims of her having knowledge 

that [Blanton] is a[n] actually innocent man in prison and Judge Keller knew the February 27, 

2019 Motion for Leave to File the Original Application for Writ of Habeas Corpus [was] a 

forgery against [Blanton] [in] violation of 18 U.S.C. § 1001,” and (2) mail him a copy of the 

February 27, 2019 Motion for Leave to File. Doc. 2 at 7-8. 

Blanton has unsuccessfully filled other letter complaints raising similar scurrilous and 

delusional allegations against judges of this Court, the Court of Appeals for the Fifth Circuit, and 

the Texas Supreme Court, which essentially challenged only his underlying conviction in 

violation of the Fifth Circuit sanction order. See Blanton v. Solis, No. 3:21-CV-291-D-BK, 2021 

WL 1147587, at *1 (N.D. Tex. Feb. 18, 2021), R. & R. adopted, No. 3:21-CV-0291-D, 2021 WL 

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1139407 (N.D. Tex. Mar. 25, 2021); Blanton v. Director, No. 3:22-CV-336-G-BK, 2022 WL 

1491358, at *1 (N.D. Tex. Apr. 21, 2022), R. & R. adopted, No. 3:22-CV-0336-G-BK, 2022 WL 

1488440 (N.D. Tex. May 11, 2022).

Upon review, Blanton’s complaint is again frivolous, lacking in any legal or factual basis,

and should be dismissed sua sponte.

II. ANALYSIS

Because Blanton did not pay the filing fee, the Court presumes that he seeks leave to 

proceed in forma pauperis. As such, his complaint is subject to screening under 28 U.S.C. § 

1915(e)(2)(B) and 28 U.S.C. § 1915(A)(b).

1

 Those statutes provide for the sua sponte dismissal 

of a complaint if the Court finds that it is frivolous or malicious, (2) fails to state claim upon 

which relief may be granted, or (3) seeks monetary relief against a defendant who is immune 

from such relief. A complaint is frivolous when it “lacks an arguable basis either in law or in 

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in law 

when it is premised “on an indisputably meritless legal theory,” Id. at 327, and fails to state a 

claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief 

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Court must always liberally construe pleadings filed by pro se litigants. See 

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting pro se pleadings “must be held to less 

stringent standards than formal pleadings drafted by lawyers”); cf. FED. R. CIV. P. 8(e)

1 Because Blanton seeks, in part, mandamus relief stemming from state habeas proceedings, the 

filing fee provisions of 28 U.S.C. § 1915(b) do not apply. See In re Stone, 118 F.3d 1032, 1034 

(5th Cir. 1997) (holding petition for writ of mandamus that arose from post-conviction habeas 

application was not subject to fee payment requirements of § 1915(b)).

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(“Pleadings must be construed so as to do justice.”). Even under the most liberal construction, 

however, Blanton’s complaint is utterly frivolous and fails to state a claim.

To the extent Blanton alleges criminal law violations in this Court, his request lacks any 

legal basis. Criminal statutes do not create a private right of action. For a private right of action 

to exist under a criminal statute, there must be “a statutory basis for inferring that a civil cause of 

action of some sort lay in favor of someone.” Cort v. Ash, 422 U.S. 66, 79 (1975), overruled in 

part by Touche Ross & Co. v. Redington, 442 U.S. 560 (1979); see Suter v. Artist M., 503 U.S. 

347, 363 (1992) (concluding that the party seeking to imply a private right of action bears the 

burden to show that Congress intended to create one). Here, Blanton has pled nothing that would 

even come close to meeting that burden. See also Williams v. Cintas Corp., No. 3:07-CV-0561-

M, 2007 WL 1295802, *2 (N. D. Tex. Apr. 10, 2007) (collecting cases finding no private cause 

of action for perjury in federal court and no private right of action for civil perjury under Texas 

law), R. & R. accepted, 2007 WL 1300780, at *1 (N. D. Tex. May 02, 2007). Moreover, 

“decisions whether to prosecute or file criminal charges are generally within the prosecutor’s 

discretion, and, as a private citizen, [the plaintiff] has no standing to institute a federal criminal 

prosecution and no power to enforce a criminal statute.” Gill v. Texas, 153 F. App’x 261, 262-63 

(5th Cir. 2005).

Likewise, federal courts are without power to issue writs of mandamus against state 

officers in the performance of their duties where mandamus is the only relief sought. See Moye 

v. Clerk, DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973) (per curiam). 

Blanton’s complaint can be construed only to seek mandamus relief against Judge Keller and the 

Texas Court of Criminal Appeals by compelling them to provide an affidavit relating to his 

innocence and copies of pleadings filed in that court. Accordingly, Blanton’s request for 

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mandamus relief lacks merit and should be dismissed with prejudice as frivolous and for failure 

to state a claim. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (affirming dismissal of 

mandamus petition as frivolous because federal courts lack power to mandamus state officials in 

performance of their duties). 

In sum, Blanton fails to state a cognizable claim or anything that can be construed as 

such. 

III. LEAVE TO AMEND 

Generally, “a pro se litigant should be offered an opportunity to amend his complaint 

before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). However, the 

Court is not required to grant leave to amend “if the plaintiff has already pleaded his ‘best case.’” 

Id. Blanton’s apparent claims are fatally infirm. Based on the most deferential review of his 

complaint, it is highly unlikely that, given the opportunity, he could allege cogent and viable 

legal claims. Under these circumstances, the Court can only conclude that he has already pled 

his best case and that granting leave to amend would be futile and cause needless delay. 

IV. SANCTION AND THREE-STRIKE WARNING

Given his filing history and the dismissal of prior related actions as frivolous and for 

failure to state a claim, Blanton should be warned that if he persists in filing frivolous, baseless 

or duplicative actions, or actions over which the Court lacks subject matter jurisdiction, the Court 

may impose monetary sanctions and/or bar him from bringing any further action. See FED. R.

CIV. P. 11(b)(2) and (c)(1) (providing for sanctions against pro se litigants or attorneys). 

Sanctions may be appropriate when a pro se litigant has a history of submitting multiple 

frivolous claims. Mendoza v. Lynaugh, 989 F.2d 191, 195-97 (5th Cir. 1993); see also

Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802-03 (5th Cir. 2003) (a violation of any 

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provision of Rule 11(b) justifies sanctions). Pro se litigants have “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). Moreover, 

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.” Free v. United States, 

879 F.2d 1535, 1536 (7th Cir. 1989).

Further, the “three-strike” provision of the Prison Litigation Reform Act (“PLRA”), 28 

U.S.C. § 1915(g), precludes a prisoner from bringing a civil action in forma pauperis if on three 

or more prior occasions, while confined as a prisoner, he filed civil actions or appeals in federal 

court that were dismissed as frivolous or malicious, or for failing to state a claim. Jackson v. 

Johnson, 475 F.3d 261, 265 (5th Cir. 2007); see also Brown v. Megg, 857 F.3d 287, 290-91 (5th 

Cir. 2017) (“[S]ection 1915(g) comports with the PLRA’s effort ‘to filter out the bad claims filed 

by prisoners and facilitate consideration of the good.’” (quoted case omitted)).

V. CONCLUSION

For the foregoing reasons, this action should be summarily DISMISSED WITH 

PREJUDICE as frivolous and for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B); 28 

U.S.C. § 1915A(b). In addition, Blanton should be WARNED that if he persists in filing 

frivolous or baseless civil actions, the Court may impose monetary sanctions and/or bar him 

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from filing any future lawsuits. See FED. R. CIV. P. 11(b)(2) and (c)(1); 28 U.S.C. § 1915(g).

SO RECOMMENDED on August 4, 2022.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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 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 Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time 

to file objections to 14 days). 

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