Opinion
No. 3:02-CV-1068-M
October 2, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by an individual pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff presently resides in Dallas, Texas. Defendants are Defense Counsel John Teter, County Criminal Court No. 2 Judge Lynn Burson, Garland Police Officer R. B. Yenne, Dallas Police Officer Adolfo Perez, District Attorney William T. Hill, Jr., Fifth District Court of Appeals Judge Joseph B. Morris, Dallas Chief of Police Terrell Bolton, and Dallas County Sheriff Jim Bowles. The court has not issued process in this case. However, on May 29, 2002, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on June 3, 2002. The following day, Plaintiff submitted exhibits in support of his answers to the questionnaire.
Statement of Case: Plaintiff seeks to sue Defendants for his false arrests, false imprisonments, and criminal prosecutions for driving while his license was suspended in Cause Nos. MAO1-27740-M and MAO1-73128-M. He requests compensatory and punitive damages for mental anguish and false arrest, and declaratory and injunctive relief preventing future harassment by local police. (Complaint at 1-2). Plaintiff also seeks to recover for all out-of-pocket expenses for bail, fines, court and towing fees, damaged property, and lost wages. (Id. at 2).
In addition to the above relief, Plaintiff requests dismissal of all charges pending against him. Such a claim, however, would be cognizable only in the context of a habeas corpus action pursuant to 28 U.S.C. § 2241, et seq.
Based upon the allegations in Plaintiff's complaint and in his answers to the magistrate judge's questionnaire, the material facts on which his complaint is predicated are as follows:
On December 15, 2000, Defendant Yenne, a Garland Police Officer, arrested Plaintiff for driving while his license was suspended. (Answer to Question 3 of the Magistrate Judge's Questionnaire and Exh. C to Answers to Questionnaire). At arraignment, Plaintiff pled not guilty and was freed on bond. (Id.). On February 12, 2001, Defendant Perez, a Dallas Police Officer, arrested Plaintiff for the same offense. At arraignment, Plaintiff again pled not guilty and was freed on bond. (Answer to Question 4 and Exh. C). Subsequently Plaintiff retained John Teter to defend him in these criminal prosecutions on the understanding that he would follow the defense which Plaintiff had set out in a legal brief. (Exh. C to Questionnaire).
In answer to Question 9 of the Questionnaire, Plaintiff gives conflicting dates for his arrests.
On May 29, 2001, Plaintiff was convicted of the first offense of driving while his license was suspended. Judge Burson assessed punishment at ninety days confinement in jail, probated for twelve months, and a $450 fine. State of Texas v. Scott, No. MAO1-27740-M. On the same date, Plaintiff entered a negotiated nolo contendere plea to the second offense of driving while his license was suspended. Pursuant to the plea agreement, Judge Burson sentenced Plaintiff to ninety days confinement, probated for twelve months, and assessed a $350 fine. State v. Scott, MAOl-73128-M. Plaintiff appealed pro se in both cases. On August 11, 2001, and on March 11, 2002, the Fifth Court of Appeals at Dallas dismissed the appeals as untimely. Scott v. State, No. 05-01-01277-CR (Tex.App.-Dallas, August 17, 2001); and Scott v. State, No. 05-01-01717 CR (Tex.App.-Dallas, March 11, 2002).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915(e)(2)(B), which imposes a screening responsibility on the district court. 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) provides for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46(1957).
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
As trial counsel, Defendant Teter did not act under color of state law for purposes of § 1983 liability. It is now well established that neither appointed nor retained counsel acts under color of state law in representing a defendant at trial or on direct appeal. See Polk County v. Dodson, 454 U.S. 312, 324 (1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law). As such, Plaintiff's claims against Teter for ineffective representation before Judge Burson and for abandoning him on direct appeal (see Answer to Question 1) lack an arguable basis in law and should be dismissed with prejudice as frivolous.
Next Plaintiff requests monetary damages against Judge Burson, Judge Morris, and District Attorney Hill. Judges Burson and Morris are absolutely immune from any claim for monetary damages. It is self-evident that Judge Burson's actions in increasing Plaintiff's bond, finding him guilty of driving while his license was suspended, and sentencing him (see Answer to Question 2) occurred in her capacity and function as a county criminal court judge, which in and of itself renders her immune from a suit for monetary damages. Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also Brandley v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995). Likewise Judge Morris' decision in dismissing Plaintiff's direct appeal as untimely, although Plaintiff's criminal charges were baseless (see Answer to Question 6), occurred in his capacity and function as an appellate judge. Therefore, he is also immune from a suit for monetary damages.
In answer to Question 6, Plaintiff states that Judge Morris violated 42 U.S.C. § 1986. Insofar as Plaintiff seeks to allege a civil conspiracy claim against Judge Morris, his claim is meritless. Since Plaintiff has not alleged a valid claim under 42 U.S.C. § 1985, his claim under § 1986 is also invalid. See Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001) (a valid § 1985 claim is a prerequisite to a § 1986 claim).
Any claim for monetary damages against District Attorney Hill is also barred by the doctrine of absolute immunity. A district attorney is absolutely immune in a civil rights suit for any action taken pursuant to his/her role as a prosecutor in preparing for the initiation of judicial proceedings and in presenting the State's case. See Kalina v. Fletcher, 522 U.S. 118, 129 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir. 1997).
Plaintiff's claims against Hill are based on actions taken in his role as prosecutor in allegedly using fraudulent information to obtain an arrest warrant after Plaintiff had been arrested, and in prosecuting him in a sham proceeding before Judge Burson. Because the above conduct was taken in Hill's role in preparing for the initiation of judicial proceedings and in his capacity as state advocate he is entitled to absolute prosecutorial immunity. See Imbler, 424 U.S. at 430 (absolute immunity protected prosecutor from suit for knowingly using perjured testimony and suppressing material evidence at plaintiff's murder trial).
In addition to the judges and the prosecutor, Plaintiff seeks to sue Defendants Yenne and Perez, the arresting police officers, for false arrest, and Defendant Yenne for excessive use of a committing judge — who set a bond — and charged him with the offense of driving while his license was suspended. (See Answer to Question 2 and Exhibit C). Under Fifth Circuit case law, Plaintiff's court appearance broke the chain of causation for his allegedly false arrest. In Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), the Fifth Circuit held that if the factual basis for an arrest is placed before an independent intermediary such as a grand jury, the grand jury's decision in returning an indictment breaks the chain of causation for an action predicated on false arrest, thereby insulating the arresting officer from a false arrest suit. Plaintiff's court appearances broke the chain of causation between the allegedly false arrests and the charges for driving while his license was suspended. Therefore, Plaintiff's false arrest claims should be dismissed with prejudice as frivolous. Moreover an action for false arrest is foreclosed by the fact that Plaintiff has been found guilty on the charges which stem from these arrests.
Plaintiff's claim against Yenne for excessive use of force after the December 2000 arrest fares no better. In an attempt to force Plaintiff to don appropriate jail attire, Yenne and two other officers allegedly grabbed Plaintiff and forcefully removed his civilian clothing. (Answer to Question 3). Although Plaintiff claims that he did not resist Yenne's efforts to forcibly remove his "street clothes", he alleges that Yenne grabbed his left wrist and bent it "far back, causing great pain" and damaging the tendons. (Id.). Plaintiff states he had to undergo surgery "to remove tissue and fluid caused by Yenne's assault." (Id.).
A claim that an officer used excessive force against a pretrial detainee is analyzed under the Fourteenth Amendment's due process clause. Valencia v. Wiggins 981 F.2d 1440, 1445 (5th Cir 1993) (Fourteenth Amendment's substantive due process standard applied to pretrial detainee's excessive force claim against county jail official);see Bell v. Wolfish, 441 U.S. 520, 536 (1979) (constitutional rights of pretrial detainees flow from the procedural and substantive due process guarantees of the Fourteenth Amendment). The appropriate inquiry is the same regardless whether the claim arises under the Eighth Amendment or the Fourteenth Amendment. Valencia, 981 F.2d at 1446 (holding that Hudson v. McMillian's test for use of excessive force under the Eighth Amendment applies to a pretrial detainee's excessive force claim under the Due Process Clause); see also Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993) (same); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (same).
Under Hudson v. McMillian, 503 U.S. 1, 8 (1992), the plaintiff must show that the force was not applied "in a good faith effort to maintain or restore discipline," but rather was administered in a malicious and sadistic manner to cause harm. The above standard includes both an objective and a subjective component. Under the objective component, a court must determine whether "the alleged wrongdoing was objectively `harmful enough' to establish a constitutional violation." Hudson 503 U.S. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 302 (1991)). Under the subjective component, a plaintiff must show that the defendant acted maliciously and sadistically to cause harm. . . ." Id. at 7. The following objective factors may be suggestive of intent: (1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible official; and (5) any efforts made to temper the severity of the forceful response. Valencia 981 F.2d 1440, 1446 (citing Hudson v. McMillian 962 F.2d 522, 523 (5th Cir. 1992) (opinion on remand)).
In answer to the questionnaire, Plaintiff concedes he refused to obey Yenne's order that he should change into the prison uniform. (Answer to Question 3). Under the Constitution it is objectively reasonable to use force within a prison in a good faith effort "to maintain or restore discipline." Hudson, 503 U.S. at 8. In light of Plaintiff's repeated refusal to wear the jail uniform, the use of force was not objectively "harmful enough" to establish a constitutional violation. Accepting as true Plaintiff's allegations, he cannot show that Yenne acted "maliciously and sadistically to cause harm," even considering the tendon injury in his left wrist. Accordingly, Plaintiff's excessive force claim should be dismissed as frivolous.
Next Plaintiff seeks to sue Chief of Police Bolton and Dallas County Sheriff Bowles. In answer to the questionnaire, he alleges that Bolton and Bowles failed to inform the Dallas Police Department and the Dallas County Sheriff Department respectively of the violations of Plaintiff's constitutional rights during his prior arrests. Further he alleges that Bolton permitted guards to torture Plaintiff by denying him blankets at the Lew Sterrett Jail even though the cell was very cold, and allowed the removal of his prescription eye glasses in violation of jail rules. (Answer to Question 7). On August 3, 2001, Plaintiff sent Bolton and Bowles by certified mail a copy of exhibit A titled "Good Faith Actual Notice of the Law and Obstruction of Justice by Police Officers." (See Exhibit A submitted in answer to the questionnaire). Other than for this mailing which post dated all arrests at issue in this case, Plaintiff's complaint and answers to the questionnaire do not allege any other facts which this court could liberally construe to allege that Defendants Bolton and Bowles were personally involved in the acts causing the alleged deprivation of Plaintiff's constitutional rights.
On May 5, 2002, Plaintiff was arrested by the DeSoto Police Department on the basis of "another fictitious warrant issued by [Judge] Lynn Burson." (See Answer to Question 9). He was in jail for three days. (Id.). Since this arrest involved neither the Dallas Police Department nor the Dallas County Sheriff Department, it cannot be a basis for a cause of action against either Bolton or Bowles.
To be liable under § 1983, an individual must be personally involved in the acts causing the deprivation of a person's constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). It is well settled that supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (i) affirmatively participate in acts that cause constitutional deprivation, or (ii) implement unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985).
The answers to the magistrate judge's questionnaire reflect that Plaintiff cannot meet either of the above standards. Therefore, Plaintiff's claims against Defendants Bolton and Bowles lack an arguable basis in law and should be dismissed as frivolous.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous and for seeking monetary relief against Defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) and (iii).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.