1

Plaintiff filed suit against the Texas Workforce Commission for denying his workers’

compensation claim. Moss v. T.W.C.C., 3:04-CV-2556-N (N.D. Tex. Jan. 20, 2005). On

Findings and Conclusions of the

United States Magistrate Judge Page -1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES LOUIS MOSS, §

Plaintiff, §

§ No. 3:05-CV-172-M

v. §

§

STATE OF TEXAS, §

Defendant. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this

case has been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. Parties

Plaintiff filed an unspecified civil action. Plaintiff is proceeding pro se, and the Court

has granted him permission to proceed in forma pauperis. Service has not issued.

II. Background

Plaintiff argues the State of Texas violated his civil liberties because the State has

“looked the other way” while big insurance companies have breeched workers’ rights. He

argues the State failed to protect his “citizen rights” when the Texas Workforce Commission

denied his workers compensation claim.1 He argues the State has violated his constitutional

 

 Case 3:05-cv-00172-M Document 13 Filed 06/06/05 Page 1 of 4 PageID 33
January 21, 2005, the Court dismissed the suit for lack of jurisdiction.

Findings and Conclusions of the

United States Magistrate Judge Page -2-

rights and has “blacklisted” him because of a criminal charge he received in 1980.

On March 23, 2005, Plaintiff filed a motion to amend his responses to the Magistrate

Judge’s Questionnaire. On April 12, 2005, the Court granted Plaintiff’s motion to amend and

ordered Plaintiff to amend his responses by May 12, 2005. On May 23, 2005, Plaintiff filed

amended Questionnaire responses in Moss v. A.I.G. Claims Servs., Inc., et al., 3:05-CV-174-N. 

He did not file amended responses in this action. 

III. Screening

A complaint filed in forma pauperis that lacks an arguable basis in law should be

dismissed under 28 U.S.C. § 1915. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section

1915(e) requires dismissal where 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. 28 U.S.C. § 1915(e)(2)(A) & (B) (West Supp. 2003).

IV. Discussion

Plaintiff does not state the basis for jurisdiction of this complaint. He does state that

Defendant violated his civil liberties and his constitutional rights. The Court therefore construes

this complaint as a claim arising under 42 U.S.C. § 1983.

To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a

deprivation of a right secured by the Constitution and laws of the United States; and (2) a

deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S.

42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). 

 

 Case 3:05-cv-00172-M Document 13 Filed 06/06/05 Page 2 of 4 PageID 34
Findings and Conclusions of the

United States Magistrate Judge Page -3-

“The Eleventh Amendment bars an individual from suing a state in federal court unless

the state consents to suit or Congress has clearly and validly abrogated the state’s sovereign

immunity.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002). Section

1983 does not include a waiver of the states’ sovereign immunity. Quern v. Jordan, 440 U.S.

332, 338 (1979). Texas has not waived its Eleventh Amendment immunity. Sherwinski v.

Peterson, 98 F.3d 849, 852 (5th Cir. 1996). Plaintiff’s complaint should therefore be dismissed.

RECOMMENDATION

The Court recommends that Plaintiff’s complaint be dismissed with prejudice pursuant to

28 U.S.C. § 1915(e)(2)(B).

Signed this 6th day of June, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00172-M Document 13 Filed 06/06/05 Page 3 of 4 PageID 35
Findings and Conclusions of the

United States Magistrate Judge Page -4-

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and

recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title

28, United States Code, Section 636(b)(1), any party who desires to object to these findings,

conclusions and recommendation must serve and file written objections within ten days after

being served with a copy. A party filing objections must specifically identify those findings,

conclusions or recommendation to which objections are being made. The District Court need not

consider frivolous, conclusory or general objections. A party's failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from

a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140 (1985). 

Additionally, any failure to file written objections to the proposed findings, conclusions and

recommendation within ten days after being served with a copy shall bar the aggrieved party

from appealing the factual findings and legal conclusions of the Magistrate Judge that are

accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs.

Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00172-M Document 13 Filed 06/06/05 Page 4 of 4 PageID 36