Opinion
No. 4:01-CV-916-Y
March 27, 2002
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b)(1) and (2) AND UNDER 28 U.S.C. § 1915(e)(2)(b)(i) and (ii)
In November 2001, plaintiff Fred Scott was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge, and he was ordered to pay the full filing fee required by the Prison Litigation Reform Act (PLRA). Scott's complaint under 42 U.S.C. § 1983 names as defendants Tim Curry, District Attorney, Tarrant County, Texas; District Judge Thornton, 372nd Judicial District Court, Tarrant County, Texas (former); private attorney Jack Strickland; and Don Carpenter, former Sheriff, Tarrant County, Texas (out of office since early 1993). (Compl. Style; ¶ IV(B).) Scott has named each defendant in an official capacity only. (Compl. ¶ IV(B); V.) Scott complains that the defendants intentionally and knowingly prosecuted Scott without probable cause in cause number 02707230 on June 14, 1991, and that former Sheriff Carpenter held him in the Tarrant County jail without probable cause. (Compl. ¶ V.) Scott contends that he discovered in January 2000, during the sentencing phase in another cause number 07344660, that cause number 02707230 was invalid to be used as a habitual count to enhance the later cause. (Compl. ¶ V.) Scott seeks injunctive relief and monetary damages. (Compl. Relief ¶.)
A complaint filed in-forma-pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Furthermore, as a part of the PLPA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." After review and consideration of Scott's claims, the Court finds that they must be dismissed under the authority of these provisions.
Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section 28 U.S.C. § 1915(e) now requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 2001).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2001); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)).
See 28 U.S.C.A. § 1915A(a) (West Supp. 2001).
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Scott has named each defendant in an official capacity only. The analysis of these official capacity claims is guided by considering which governmental entity the particular defendant was acting for. As to Judge Thornton, "Texas judges are entitled to Eleventh Amendment immunity for claims asserted against them in their official capacity." In the absence of consent, the Eleventh Amendment bars federal lawsuits against a state or an instrumentality of the state. As Scott is seeking monetary damages from district judge Thornton in an official capacity, such claim is barred by Eleventh Amendment immunity, and must be dismissed.
Plaintiff did not state claims against the defendants in an individual capacity, but even if his claims were so construed, as to Thornton and Curry, they are barred by the doctrine of absolute immunity, and as to Carpenter, the claims fail because Scott failed to allege any personal involvement.
Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996); McCall v. Peters, No. 3:00CV2247-D, 2001 WL 1082417 at *8 (N.D. Tex. Aug. 28, 2001).
See Alabama v. Pugh, 438 U.S. 781, 784 (1978); see McCall, 2001 WL 1082417, at *8.
See Mccall, 2001 WL 1082417, at *8. To the extent Scott's claim for "injunctive relief" is construed as a claim for prospective relief against Judge Thornton, see Warnock, 88 F.3d at 343 (Eleventh Amendment does not bar state officials from claims for prospective relief), citing Ex Parte Young, 209 U.S. 123 (1908), that claim is barred by the application of Heck v. Humphrey, 512 U.S. 477 (1994) as discussed herein.
Scott's official capacity claims against Don Carpenter, as Sheriff of Tarrant County, and such claims against Tim Curry as District Attorney of Tarrant County must be construed as claims against Tarrant County, Texas. Although Tarrant County may be a "person" within the meaning of § 1983, such government body may not be held liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." The Supreme Court, in Monell v. New York City Department of Social Services, emphasized that a local government entity cannot be held liable under § 1983 on a respondeat superior basis:
See Brooks v. George County, Mississippi, 84 F.3d 157, 165 (5th Cir.) (suit against sheriff named in official capacity is suit against county), cert. den'd, 519 U.S. 948 (1996); see Crane v. State of Texas, 766 F.2d 193, 194 (5th Cir.) (a district attorney in Texas acts as a county official), reh'g denied, 759 F.2d 412 (5th Cir.), cert. den'd, 474 U.S. 1020 (1985).
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978).
[T]herefore . . . a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.
Id. at 694.
Thus, § 1983 liability attaches "only where the municipality itself causes the constitutional violation at issue." The Court of Appeals for the Fifth Circuit has defined the official policy test for purposes of § 1983 liability for a municipality as: the adoption of a formal policy statement, regulation or decision that is officially adopted by the municipality's lawmaking officials or by an official with policy-making authority, or a persistent widespread practice by municipal officials or employees, which is so common and well settled as to constitute a custom that fairly represents municipal policy. Scott does not make any factual allegations about the adoption of policy regarding the circumstances of which he complains, nor does he complain that his circumstance was consistent with or part of any widespread practice. Thus, Scott's claims against Don Carpenter and Tim Curry, in their official capacities, should be dismissed under 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original).
Evans v, Houston, No. 99-20778, 2001 WL 277839 (5th Cir. March 21, 2001), citing Bennett v. City of Slidell, 735 F.2d 861 (5th Cir. 1984) (en banc) and Brown v. Bryan County, 219 F.3d 450, 457 (5th Cir.), reh'g en banc den'd, (5th Cir. 2000), cert. den'd, No. 00-1311, 2001 WL 167670 (U.S. April 30, 2001).
Although Scott also named private counsel Jack Strickland in an official capacity, "even court-appointed attorneys are not official state actors, and are generally not subject to suit under section 1983." Because an attorney, whether private or appointed, owes his only duty to the client and not to the public or the state, his actions are not chargeable to the state. Scott cannot show that Strickland was acting under color of law, so any claim for violation of his constitutional rights asserted through 42 U.S.C. § 1983 against this defendant must be dismissed under 28 U.S.C. § 1915A (b)(1) and 1915(e)(2)(B)(i) and (ii).
Mills v. Criminal District Court No. 3, 837 F.2d677, 678 (5th cir. 1988), citing Nelson v. Stratton, 469 F.2d 1155 (5th Cir. 1972), cert. den'd, 410 U.S. 957 (1973).
See Thompson v. Aland, 639 F. Supp. 724, 728 (N.D. Tex. 1986), citing Polk County v. Dodson, 454 U.S. 312, 318 (1981); see also Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993).
Although private attorneys who have conspired with state officials may be liable under § 1983, Scott has alleged nothing to support a conspiracy claim other than the bald allegation itself, which is not enough. See Mills, 837 F.2d at 679; Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987) (plaintiffs who assert a claim under civil rights statutes must plead the operative facts upon which a conspiracy is based, bald allegations of conspiracy are insufficient); see also Groom v. Fickes, 966 F. Supp. 1466, 1477 (S.D. Tex. 1997) (dismissing sweeping conspiracy allegations devoid of any material or operative facts), aff'd, 129 F.3d 606 (5th Cir. 1997) (table); see generally Jackson v. Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996) (allegations of constitutional violations must be pleaded with `factual detail and particularity,' not mere conclusionary allegations"), citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th cir. 1995) (en banc).
Alternatively, with regard to all of Plaintiff's claims under federal law, the Court finds that they are not cognizable. Plaintiff is seeking monetary damages and injunctive relief for alleged unlawful prosecution of him without probable cause. In Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue until that conviction or sentence 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.", In Edwards v. Balisok, 520 U.S. 641, 648 (1997) the Court extended the application of Heck to claims for declaratory relief. Plaintiff Scott's allegations that the defendants violated his constitutional rights in the alleged wrongful prosecution of him without probable cause, if successful, necessarily would imply the invalidity of his conviction and incarceration, and are thus not cognizable under § 1983 unless Plaintiff has satisfied the conditions set by Heck. Plaintiff has failed to establish that he has met the prerequisites to a § 1983 action set forth by the Supreme Court. Thus, Plaintiff remains in custody and has not shown that his conviction in cause number 0270723D has been invalidated by a state or federal court. As a result, Plaintiff's claims are not cognizable, and must alternatively be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i) and (ii).
Heck, 512 U.S. at 486-87; see also Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995).
See Heck, 512 U.S. at 487-88.
It is therefore ORDERED that all of Plaintiff's claims, with the exception of any claim for prospective relief against Judge Thornton in an official capacity, be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
It is further ORDERED that any claim for prospective injunctive relief against Judge Thornton, and alternatively, all of Plaintiff's remaining claims under 42 U.S.C. § 1983 be, and they are hereby, DISMISSED WITH PREJUDICE to their being asserted again until the Heck v. Humphrey conditions are met, under the authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).