United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
M. BROWN UNITED STATES DISTRICT JUDGE
civil rights action is before the Court for consideration of
the Report and Recommendation of United States Magistrate
Judge Jane M. Virden. Doc. #5.
about January 20, 2017, Leroy Purnell, acting pro se, filed a
complaint in this Court against numerous state and private
entities. Doc. #1. Purnell's claims generally arise from
allegations that the Mississippi University Medical Center
implanted certain biometric devices in him without his
permission and that the other defendants either contributed
to or failed to investigate this wrongful act. Id.
On the same date he filed the complaint, Purnell also filed a
motion to proceed in forma pauperis. Doc. #2. On or about
February 3, 2017, Purnell filed a “Motion for Emergency
Protective Order” which seeks an order enjoining
“all law enforcement agencies ... and their employees,
medical facilities and ... personnel, or any entities ...
that are involve[d] in the covert attacks ....” Doc.
March 15, 2017, United States Magistrate Judge Jane M.
Virden issued a Report and Recommendation
recommending that: (1) Purnell's motion to proceed in
forma pauperis be denied because his claims are frivolous and
because Purnell lacks standing to pursue the claims; (2) the
motion for protective order be denied because Purnell cannot
establish a likelihood of success on the merits; and (3) this
action be dismissed as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). Doc. #5. The Report and Recommendation was
mailed to Purnell at the address listed on the docket.
Purnell has not objected to the Report and Recommendation.
objections to a report and recommendation have been filed, a
court must conduct a “de novo review of those portions
of the ... report and recommendation to which the [parties]
specifically raised objections. With respect to those
portions of the report and recommendation to which no
objections were raised, the Court need only satisfy itself
that there is no plain error on the face of the
record.” Gauthier v. Union Pac. R.R. Co., 644
F.Supp.2d 824, 828 (E.D. Tex. 2009) (citing Douglass v.
United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996)) (internal citation omitted).
Court has reviewed the Report and Recommendation and has
found one instance of plain error on the face of the record.
The Report and Recommendation, without discussion, states:
“because Purnell has failed to show an injury in fact,
he lacks standing to bring this action. See Riethmiller
v. Electors for the State, 2012 WL 4742363, at *1 (W.D.
Va. Oct. 4, 2012) (dismissing case as frivolous, finding that
plaintiff lacked legal standing to bring claims.).”
Based on the citation and accompanying parenthetical, it
appears the Report and Recommendation concluded that because
Purnell's claims were factually frivolous, he could not
show an injury in fact and thus could not establish standing.
This was not the conclusion in Riethmiller, which
found a lack of a particularized injury in fact in a
prisoner's challenge to President Barack Obama's
eligibility as a candidate, nor any authority of which this
Court is aware. Rather, the law is clear that where, as here,
“the merits of the claims asserted are intertwined with
the jurisdictional issue of standing, ” a court may not
engage in a “preliminary factual inquiry into the
plaintiff's standing.” Barrett Comp. Servs.,
Inc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).
Thus, courts routinely dismiss in forma pauperis claims on
factual frivolity, but not for lack of standing. See,
e.g., Plattenburg v. Gilliam, No. H-17-1651, 2017 WL
3008660, at *2 (S.D. Tex. July 13, 2017).
Purnell has alleged violations of his bodily integrity caused
by various state actors. While the Report and Recommendation
properly characterized these allegations as factually
frivolous, the allegations are sufficient to state an injury
in fact to support standing. See Kirola v City & Cty.
of San Francisco, 860 F.3d 1164, 1175 (9th Cir. 2017)
(“Article III is not superfluous. Its standards exist
apart from the merits, and are well established.”).
Accordingly, the Report and Recommendation is
REJECTED in Part as to the portion related
to standing. However, the remainder of the Report and
Recommendation is free from plain error. Therefore, other
than the sentence referring to lack of standing, the Report
and Recommendation  is ADOPTED in Part as
the order of the Court. Purnell's motion to proceed in
forma pauperis  and motion for a protective order  are
DENIED. This action is
DISMISSED as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). A final judgment consistent with
this opinion will issue separately.