Solomon v. Hildebrand

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
TERRY SOLOMON, JR.,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:25-CV-00247
JEFFREY HILDEBRAND,
Defendant.
MEMORANDUM AND RECOMMENDATION AND
ORDER DENYING APPOINTMENT OF COUNSEL
This case is before the undersigned through an Order of the District Court
pursuant to 28 U.S.C. § 636. (D.E. 5). The Court has conducted screening of Plaintiff's
pleadings pursuant to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure
12(h)(3); it is RECOMMENDED that Plaintiff's claims be DISMISSED for the reasons
set out in this Memorandum and Recommendation.
I. Background
Plaintiff is proceeding pro se and in forma pauperis (IFP). (See 2:25-mc-139).
Plaintiff names Defendant Jeffrey Hildebrand, owner of JDH Capital, in his Complaint.
(D.E. 1). Because Plaintiff's Original Complaint contained insufficient and/or conclusory
factual allegations, the Court ordered Plaintiff to file an Amended Complaint in an effort
to gather the facts, for § 1915(e) screening purposes, surrounding the claims listed in
United States District Court
Southern District of Texas
ENTERED
November 25, 2025
Nathan Ochsner, Clerk
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Plaintiff's Complaint. (D.E. 8). Plaintiff filed his responses to the Court's Order in
pleadings entitled “First Amended Complaint” and “Second Amended Complaint.”
(D.E.s 10 & 12). Neither response complied with the Court’s Order to File an Amended
Complaint. The Court issued an Order to Show Cause on October 24, 2025 ordering
Plaintiff to respond within twenty days. (D.E. 14). On October 30, 2025, Plaintiff filed a
document labeled “Third Amended Complaint.” (D.E. 16). The document also did not
comply with the Court’s order to file an amended complaint. On November 24, 2025,
and November 25, 2025, Plaintiff filed Civil Cover Sheets stating a medical malpractice
cause of action and “personal injury doing a physical” cause of action pursuant to “21
USC 362.” (D.E.s 18 & 19). No service of process has been issued while the Court
conducts its § 1915 screening. Plaintiff's “Complaint,” First Amended Complaint,”
“Second Amended Complaint,” “Third Amended Complaint,” and Civil Cover Sheets
will be referred to collectively as “Pleadings.”
Plaintiff's Pleadings are construed as attempts to assert claims for medical
malpractice and personal injury violations. With respect to the medical malpractice and
personal injury claims, Plaintiff alleges he underwent a blood glucose test in violation of
federal law during the hiring process for a job with Defendant. (D.E. 1, pgs. 6-7).
II. Legal Standard
Because Plaintiff is proceeding IFP, his Pleadings are subject to screening under
28 U.S.C. § 1915(e)(2)(B), which requires the district court to screen cases where the
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Plaintiff has been granted IFP status. Section 1915(e)(2)(B) reads in pertinent part as
follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that ...
(B) 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.
Section 1915(e)(2)(B) applies to both prisoner and non-prisoner IFP cases. James
v. Richardson, 344 F.App'x 982 (5th Cir. 2009). To determine whether an action states a
claim on which relief may be granted, a court must determine whether the complaint
“contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Newsome v.
EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (citing Moore v. Carwell, 168 F.3d 234, 236
(5th Cir. 1999) ) (reviewing dismissal pursuant to § 1915(e)(2)(B)(ii) according to the
same standard used to review a dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6) ).
The allegations made in a pro se complaint are held “to a less stringent standard
than formal pleadings drafted by lawyers ....” Haines v. Kerner, 404 U.S. 519, 520
(1972). To hold a pro se plaintiff to strict compliance “would be inequitable” as courts
would punish a pro se plaintiff “for lacking the linguistic and analytical skills of a trained
lawyer.” Perez v. United States, 312 F.3d 191, 194–95 (5th Cir. 2002). To avoid such a
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result, “courts have adopted the rule that a pro se plaintiff's pleadings are liberally
construed.” Id. Even though pleadings by a pro se litigant are held to a less stringent
standard, courts must be able to draw a reasonable inference from the pleadings that the
defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007)).
Although a pro se litigant's pleadings must be read more liberally than those filed
by an attorney, the complaint must nonetheless allege sufficient facts from which the
defendants can fairly appreciate the claim made against them. Some facts must be alleged
which convince the Court that the plaintiff has at least a colorable claim. Conclusory
allegations will not suffice. See Mills v. Criminal Dist. Ct., 837 F.2d 677, 678 (5th Cir.
1988).
Additionally, under Federal Rule of Civil Procedure 12(h)(3), a case may be
dismissed at any stage if the Court finds there is no basis for federal subject-matter
jurisdiction. The Court must inquire into its subject-matter jurisdiction on its own
initiative. Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 582–83 (1999).
III. Discussion
In his Pleadings, Plaintiff alleges he underwent a blood glucose test in violation of
federal law during the hiring process for a job with Defendant. Following a review of
Plaintiff's claims under § 1915(e)(2)(B)(ii), the undersigned concludes that this Court
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does not have subject-matter jurisdiction over Plaintiff's medical-malpractice or personal
injury claims.
“Subject matter jurisdiction may not be waived, and the district court ‘shall
dismiss the action’ whenever ‘it appears by suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter.’ ” Avitts v. Amoco Prod. Co., 53 F.3d 690,
693 (5th. Cir. 1995) (quoting Fed. R. Civ. P. 12(h)(3) ). Federal courts are courts of
limited jurisdiction and can only hear those cases authorized by federal statute, the U.S.
Constitution, or a U.S. Treaty. Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994).
Therefore, a plaintiff must establish that the court has either diversity or federal-question
jurisdiction. See id.
Plaintiff does not describe any federal statute, treaty, or constitutional provision
that is at issue in relation to his medical malpractice and personal injury causes of action.
Therefore, he has failed to state a basis for jurisdiction under 28 U.S.C. § 1331. See Scott
v. Pfizer Inc., 182 F.Appx. 312, 315 (5th Cir. 2006) (finding no subject-matter
jurisdiction over medical malpractice claim). Additionally, Plaintiff has not shown that
diversity jurisdiction exists under 28 U.S.C. § 1332; in fact, the Plaintiff is a citizen of
Texas and Defendant Hildebrand appears to conduct all its business in Texas.
Accordingly, because Plaintiff's claims concern state-law medical malpractice and
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personal injury claims against a non-diverse defendant, any medical malpractice and
personal injury claims against Defendant Hildebrand should be dismissed.1
Plaintiff has also filed a Motion for Appointment of Counsel. (D.E. 17). “No
constitutional right to appointment of counsel exists in civil rights cases.” Stark v. TRT
Holdings Dev. Inc., Civil Action No. C-08-88, 2008 WL 11389037, at *1 (S.D. Tex. May
28, 2008). A plaintiff proceeding in forma pauperis under 28 U.S.C. §1915, as here, must
show “exceptional circumstances” to warrant appointment of counsel. Gonzalez v.
Carlin, 907 F.2d 573, 580 (5th Cir. 1990); Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir.
1992). Because the Court has determined that Plaintiff has failed to state a claim and the
Court has no subject-matter jurisdiction, his request for appointment of counsel is
DENIED.
IV. Conclusion
For the reasons stated herein, the undersigned RECOMMENDS DISMISSAL of
all claims in Plaintiff's Complaint sua sponte pursuant to Federal Rule of Civil Procedure
12(h)(c)(3) and the Court's screening duty under 28 U.S.C. § 1915(e)(2)(B).
Respectfully recommended on November 25, 2025.
____________________________
Julie K. Hampton
United States Magistrate Judge
1 Plaintiff cites “21 USC 362” in his Civil Cover Sheets. The Court notes that statute is regarding Misbranded
Cosmetics and appears to have no relation to Plaintiff’s claims.
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).
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