Opinion
CIVIL ACTION NO. 5:03-CV-035-C
July 25, 2003
ORDER
Plaintiff, Terry Bolton, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against the Lubbock Police Department, Lubbock County Sheriffs Department, Robert Heald, Travis Sandoval, and the Dickens County Correctional Center. Defendants Heald and Sandoval are attorneys.
Plaintiff alleges that he was falsely arrested, maliciously prosecuted, denied access to the courts, deprived of his property, and misrepresented by his attorneys.
In response to the Court's Questionnaire, Plaintiff stated that he was arrested on January 6, 2002, for attempted burglary of a habitation. He was convicted on July 6, 2003, and sentenced to 20 years' incarceration. His direct appeal is pending before the Seventh Court of Appeals of Texas.
Pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915(A)(b), the court is required to dismiss the complaint or any part of it if it is frivolous or malicious or fails to state a claim on which relief may be granted. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 324 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted).
To the extent that Plaintiff is seeking damages for an allegedly unconstitutional conviction or imprisonment, he cannot bring a § 1983 claim until the conviction has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
In order to prevail on his claim that he was maliciously prosecuted, Plaintiff must show that "(1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceedings damaged the plaintiff." Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994).
Criminal proceedings "terminate in favor of the accused only when they affirmatively indicate that he is not guilty." Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999).
"The claim for false arrest does not cast its primary focus on the validity of each individual charge . . . If there was probable cause for any of the charges made . . . then the arrest was supported by probable cause, and the claim for false arrest fails." Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). Further, Plaintiff's claim for false arrest is barred because of his conviction. Wells, 45 F.3d at 92.
Plaintiff also claims that the Defendants Heald and Sandoval entered into a conspiracy to frame him for the crime. Plaintiff has failed to include any allegations of specific operative facts. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). Mere conclusory allegations of a conspiracy will not support an action under § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).
Plaintiff alleges that he was denied access to the courts while he was incarcerated in the Lubbock County Jail and the Dickens County Correctional Center. In response to the Court's Questionnaire, he states that he was not prevented from filing a case challenging his conviction nor was he prevented from filing a case challenging the conditions of his confinement. He is represented on appeal by counsel and the instant civil rights case is the only other case he has pending.
The right of prisoners' access to the courts "encompasses only a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement." Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (finding that "five hours of library time a week will not result in a violation" of the right of access to the courts); Bounds v. Smith, 430 U.S. 817 (1977) (one day or 8 hours of access to a law library a month found to be constitutional).
A prisoner is required to "demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2180 (1996); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) ("without proving an actual injury, a prisoner cannot prevail on an access-to-the-courts claim."). Thus, Plaintiff must allege an actual injury. Id. "[A]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." Id. Plaintiff is required to show that his attempt to pursue a challenge to his confinement or a direct or indirect attack on his sentence was hindered. Id. Thus, Plaintiff must allege an actual injury. Id.
The Court finds that Plaintiff has failed to show that he suffered an actual injury and has failed to show that any action on the parts of the Defendants resulted in a violation of his right of access to the courts
Plaintiffs claim regarding his property is not actionable under § 1983. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).
Plaintiff alleges that his attorneys, Defendants Heald and Sandoval, misrepresented him.
The elements of a cause of action under § 1983 are that a plaintiff has been deprived of a right guaranteed by the Constitution or laws of the United States by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A defense attorney, whether appointed or retained, does not act under color of state law. Polk County v. Dodson, 454 U.S. 312 (1981). Plaintiff does not have a cause of action against his former attorneys under § 1983.
Based on the above findings and conclusions, the Court finds that Plaintiffs civil rights complaint and all claims alleged therein should be dismissed with prejudice as frivolous. Any pending motions are denied as moot.
SO ORDERED.
Judgment shall be entered accordingly.
This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
Dismissal of this action does not release the Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
A copy of this Order shall be mailed to the Office of General Counsel, TDCJ-ID Litigation Support, P.O. Box 13084, Austin, Texas 78711 and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77342-0629.