Perkins v. Brewster ( 2021 )

Case: 20-50678 Document: 00515820284 Page: 1 Date Filed: 04/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50678 April 13, 2021
Lyle W. Cayce
Clerk
Wesley Perkins,
Plaintiff—Appellant,
versus
Executive Director Whitney Brewster, Texas
Department of Motor Vehicles, which department is a
public charitable trust and non-beneficiary, Officially and
Individually; City of Austin, a municipal corporation; City
Attorney Anne Morgan, Officially and Individually; Police
Chief Brian Manley, Officially and Individually; J. M.
Hallmark, Arresting Officer, Officially and Individually;
Southside Wrecker, a commercial enterprise; Judge Lee
Yeakel,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-70
Before Higginbotham, Jones, and Costa, Circuit Judges.
Case: 20-50678 Document: 00515820284 Page: 2 Date Filed: 04/13/2021
No. 20-50678
Per Curiam:*
Wesley Perkins has filed five federal lawsuits, 1 one habeas petition, 2
and three state court appeals 3 related to a series of traffic stops that he
challenges again in this appeal. He consistently argues that he is not subject
to the Texas Transportation Code because he has not consented to such
regulation. He thus concludes that his arrest for driving without a license or
registration tags or plates violated his civil rights. Perkins v. Ivey, 772 F.
App’x 245, 245–46 (5th Cir. 2019).
This time around, the district court granted a motion for a more
definite statement of Perkins’s allegations. See Fed. R. Civ. P. 12(e).
Perkins responded with an amended complaint. In addition to his argument
that he has not engaged in “transportation” or driven a “vehicle,” Perkins
challenged the district court’s ability to transfer portions of his case to a
magistrate without his consent. Later, Perkins moved to disqualify the
district judge for bias, and a different district judge denied the motion.
Ultimately, the district court dismissed all of Perkins’s claims as frivolous.
Perkins appeals that dismissal, the order granting defendants’ motion for a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
In addition to this one, see Perkins v. Lipscombe, No. 1:20-CV-493-RP (W.D. Tex.
July 20, 2020) (dismissed as frivolous); Perkins v. Mischtian, No. 1:20-CV-296-RP-ML
(W.D. Tex. July 17, 2020) (dismissed for failure to serve process); Perkins v. Brewster, 2018
WL 814250, at *1 (W.D. Tex. Feb. 9, 2018), report and recommendation adopted, 2018 WL
1898402 (W.D. Tex. Mar. 7, 2018); Perkins v. Brewster, 2018 WL 4323948, at *1 (W.D.
Tex. Sept. 7, 2018), aff’d sub nom. Perkins v. Ivey, 772 F. App’x 245 (5th Cir. 2019) (per
curiam).
2
Perkins v. Hernandez, 1:18-CV-201-RP (W.D. Tex. July 20, 2019).
3
Perkins v. State, 2016 WL 4272109 (Tex. App.—Austin Aug. 11, 2016, pet.
denied); Perkins v. State, 2016 WL 691265 (Tex. App.—Austin Feb. 19, 2016, pet. denied);
Perkins v. State, 2015 WL 3941572 (Tex. App.—Austin June 25, 2015).
2
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No. 20-50678
more definite statement, and the denial of the motion to disqualify the district
judge.
What we told Perkins last year resolves the merits of this year’s
appeal: “Perkins violated [the Texas Transportation Code] according to [its]
plain meaning. And his counter-argument that he is not governed by the
statutes is unconvincing.” Perkins, 772 F. App’x at 246-47. It is as true now
as it was then that one need not “consent” to the Transportation Code to be
bound by it. Id.Perkins’s procedural complaints are just as frivolous. The district
court did not transfer anything in this case to a magistrate judge. In any
event, we previously explained that the common practice of having
magistrate judges submit proposed findings to district judges is lawful.
Perkins, 772 F. App’x at 246.
The district court did not abuse its discretion by granting the motion
for a more definite statement. It is hard to see what, if any, harm Perkins
suffered by the grant of this motion—he did not oppose the motion when it
was filed, and he filed an amended complaint afterwards. See Mitchell v. E-Z
Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959) (noting that any incorrect
order for a more definite statement “becomes immaterial after it has been
complied with”). Even if he can challenge the ruling, it was no abuse of
discretion. If the allegations ended up being frivolous even after Perkins
added allegations, then how can it have been improper to require more detail
on the original complaint? If anything, it gave Perkins a second chance to
state valid claims.
Neither did the district court abuse its discretion in denying Perkins’s
motion to disqualify the presiding judge. Perkins’s complaint about the judge
appears related the judge’s referral of previous matters to a magistrate judge.
Neither that nor anything else in the record demonstrates anything close to
3
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No. 20-50678
the “impartiality” or “personal bias” that warrant disqualification. See 28
U.S.C. §§ 144, 455.
The judgment is AFFIRMED.
4