Johnston v. Antle

             UNITED STATES DISTRICT COURT                                
               WESTERN DISTRICT OF TEXAS                                 
                      AUSTIN DIVISION                                    

PAUL JOHNSTON,                 §                                         
Plaintiff                      §                                         
                               §                                         
v.                             §     Case No.  1:24-CV-00046-DII         
                               §                                         
DOYLE ANTLE, SHEILA LNU,       §                                         
Defendants                     §                                         


          ORDER AND REPORT AND RECOMMENDATION                            
          OF THE UNITED STATES MAGISTRATE JUDGE                          

TO:  THE HONORABLE ROBERT PITMAN                                          
    UNITED STATES DISTRICT JUDGE                                         

    Before the Court is Plaintiff Paul Johnston’s Application to Proceed In Forma 
Pauperis. Dkt. 2. 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.                                                                   
     I.    APPLICATION TO PROCEED IN FORMA PAUPERIS                      
    The  Court  has  reviewed  Johnston’s  financial  affidavit  and  determined 
Johnston is indigent and should be granted leave to proceed in forma pauperis. 
Accordingly, the Court hereby GRANTS Johnston’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). Johnston 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 recommends that Johnston’s claims be DISMISSED 
WITH  PREJUDICE   under  28  U.S.C.  § 1915(e)(2).  Therefore,  service  upon  the 
defendants  should  be  WITHHELD  pending  the  District  Judge’s  review  of  the 

recommendations made in this report. If the District Judge declines to adopt the 
recommendations, service should be issued at that time upon the defendants.  
         II.   REVIEW OF THE MERITS OF THE CLAIM                         
    Because Johnston has been granted leave to proceed in forma pauperis, the 
undersigned  is  required  by  statute  to  review  his  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).  A complaint is 
frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 
490 U.S. 319, 325 (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A 
complaint lacks an arguable basis in law when it is “based on an indisputably 
meritless legal theory.” Neitzke, 490 U.S. at 327. Pro se complaints are liberally 
construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (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).                          
    Johnston sues Doyle Antle and Sheila LNU (Last Name Unknown), alleging 
that these Defendants evicted Johnston from his apartment based on a “libelous, 
slanderous, fraudulent statement” by an unknown resident of Johnston’s apartment 
complex. Dkt. 1, at 5, 6. Johnston further alleges that the Defendants conspired to 

hide the unknown resident’s identity from Johnston, or at least that Defendants 
refused  to  admit  to  Johnston  that  the  unknown  resident  made  the  “libelous, 
slanderous, fraudulent statement.” Id. at 5. Johnston’s complaint further alleges that 
the unknown resident “curses” and “threatened to run over [another individual] with 
his scooter.” Id. at 6. Finally, Johnston alleges that the unknown resident’s son came 
to Johnston’s apartment, “raised his voice,” and “threatened” Johnston “by acts, 
words, [and] deeds.” Id. at 6.                                            

    Initially, because Johnston does not name the unknown resident and his or her 
son in this suit, the undersigned will evaluate only the claims against Doyle Antle 
and Sheila LNU. Liberally construed, Johnston’s complaint alleges two claims for 
relief against those Defendants: obstruction of justice and violations of the cruel-and-
unusual-punishment clause of the Eighth Amendment.1                       

    1 While Johnston describes the unknown resident’s statement as “libelous, slanderous, 
[and] fraudulent,” Johnston does not allege that Defendants in this action made any libelous, 
    A.   Obstruction of Justice                                          
    Generally,  “obstruction  of  justice”  refers  to  the  “crime  or  act  of  willfully 
interfering with the process of justice and law, [including] influencing, threatening, 

harming, or impeding a witness, potential witness, juror, or judicial or legal officer or 
by furnishing false information in or otherwise impeding an investigation or legal 
process.” Pugin v. Garland, 599 U.S. 600, 604 (2023).2                    
    Here, Johnston is a private citizen. A private citizen may not initiate a federal 
criminal prosecution because the power to do so is vested in the executive branch. See 
United States v. Nixon, 418 U.S. 683, 693 (1974) (holding that the executive branch 

has “exclusive authority and absolute discretion to decide whether to prosecute a 
case”); Pierre v. Guidry, 75 F. App’x 300, 300 (5th Cir. 2003) (affirming the Magistrate 
Judge’s conclusion that a private plaintiff had “no right to bring a private action 
under federal criminal statutes”). Therefore, Johnston has failed to state a claim for 
obstruction of justice on which relief can be granted under § 1915(e)(2), and his 
obstruction-of-justice claim should be dismissed. 28 U.S.C. § 1915(e)(2). 
    B.   Eighth Amendment                                                

    Johnston’s Eighth Amendment claim likewise should be dismissed. The Eighth 
Amendment prohibits governments from inflicting cruel and unusual punishment on 
private citizens against whom the government has “secured a formal adjudication of 


slanderous, or fraudulent statement. Therefore, the undersigned will not address claims of 
libel, slander, or fraud.                                                 
    2 The offense is further defined in Chapter 73 of Title 18 of the U.S. Code. Pugin, 599 
U.S. at 605.                                                              
guilt in accordance with due process of law.” U.S. Const. amend. VIII; Ingraham v. 
Wright, 430 U.S. 651, 672 n.40 (1977).                                    
    Here, Johnston has not been adjudicated guilty of any crime. See Ingraham, 

430 U.S. at 672 n.40. Further, Johnston alleges that Defendants, who are private 
citizens, have inflicted cruel and unusual punishment on him. Dkt. 1, at 5. Since the 
Eighth Amendment does not protect individuals who have not been adjudicated guilty 
and does not protect against allegedly cruel and unusual punishment by private 
citizens, Johnston has failed to state a claim for relief under 28 U.S.C. § 1915(e)(2). 
See Ingraham, 430 U.S. at 672 n.40. Therefore, Johnston’s Eighth Amendment claim 

should be dismissed.3                                                     
                        III.  ORDER                                      
    In accordance with the foregoing discussion, the Court HEREBY GRANTS 
Johnston’s  Application  to  Proceed  In  Forma  Pauperis.  Dkt.  2.  The  undersigned 
RECOMMENDS that the District Court DISMISS WITH PREJUDICE Johnston’s      
lawsuit under 28 U.S.C. § 1915(e)(2).                                     
    The referral of this case to the Magistrate Judge should now be canceled.  




    3 While under some circumstances private citizens can be considered government 
actors for purposes of the Eighth Amendment, Johnston has not pleaded that Defendants 
here fall into any of those categories. See Dkt. 1; see also Manhattan Cmty. Access Corp. v. 
Halleck, 587 U.S. 802, 809 (2019) (“Under this Court’s cases, a private entity can qualify as 
a state actor in a few limited circumstances—including, for example, (i) when the private 
entity performs a traditional, exclusive public function, … (ii) when the government compels 
the private entity to take a particular action, … or (iii) when the government acts jointly with 
the private entity.”).                                                    
                           IV.     WARNINGS 
     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. U.S. 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). 

     SIGNED September 19, 2024. 
                                 is 
                                 “DUSTINM.HOWELL     =——C“S 
                                  UNITED STATES MAGISTRATE JUDGE