Opinion
CIVIL ACTION NO. 6:03-CV-001-C
May 21, 2003
ORDER
Plaintiff, acting pro se, filed suit pursuant to 42 U.S.C. § 1983 alleging conspiracy, false arrest, false imprisonment, perjury, and denial of due process. He has sued an officer of the San Angelo Police Department; Paul Kinyon, a pharmacist; Gerald A. Fohn, the District Attorney of Tom Green County, Frank D. Brown, an Assistant District Attorney; William Moore, his attorney; the Honorable Curt F. Steib, Senior District Judge of Tom Green County; Tom Green County; and Sheri Woodfin, the District Clerk of Tom Green County.
Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. § 1915 and the filing fee was assessed by Order dated January 10, 2003. Plaintiff then paid the $150.00 filing fee on January 29, 2003.
Plaintiff filed his response to the Court's questionnaire on February 13, 2003.
On May 5, 2003, Plaintiff filed a motion to amend and supplement his complaint in which he identifies John Doe as Bill Mabc, He also seeks to add three additional defendants.
Plaintiffs complaint arises out of his arrest in 1990 and subsequent conviction in 1991, His complaint against Defendant Sheri Woodfin arose in 2002. In his response to the Court's questionnaire, Plaintiff alleges that he is suing Woodfin because she denied him due process and kept him imprisoned because she withheld copies of letters he had written to the court and the sheriff in 1991.
Plaintiff admits that his conviction has not been overturned.
Plaintiff is currently incarcerated in the Connally Unit of the Texas Department of Criminal Justice, Institutional Division,
Under 28 U.S.C. § 1915 and § 1915A and 42 U.S.C. § 1997e, the Court is required to dismiss the complaint or any portion of the complaint, if the complaint is frivolous or malicious or fails to state a claim on which relief may be granted A claim may be dismissed as fiivolous if the claim lacks an arguable basis in law or in fact Denton v. Hernandez, 504 U.S. 25, 112 S.Ct 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also, Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94 (5th Cir. 1994). "A complaint is legally frivolous if it is premised on an `undisputably meritless legal theory.'" Boyd v. Biggers, 31 F.3d 279, 281-82 (5th Or. 1994), quoting Neitzke v. Williams, 490 U.S. at 327.
Judges are absolutely immune from suit under § 1983 for acts taken in the performance of their judicial functions, Krueger v. Reimer, 66 F.3d 75, 77 ( 5th Cir. 1995). Plaintiff has not alleged that Judge Steib engaged in any actions which would place him outside the scope of judicial immunity.
The elements of a cause of action under U.S.C. § 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 attorney under § 1983. Further, Defendant Paul Kinyon, a pharmacist for HEB is not a state action and does not act under color of state law.
A criminal prosecutor is immune from civil suit for damages under § 1983 in presenting the state's case, Jmbler v. Pachtman, 424 U.S., 409, 431 (1976). This applies to the prosecutor's actions in initiating prosecution and carrying the criminal case through the judicial process. Young v. Diggers, 938 F.2d 565, 569 (5th Cir. 1991); Krueger v. Remer, 66 F.3d at 76-77.
As to Plaintiffs civil rights conspiracy claims, Plaintiff has felled 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). Even specific allegations of a conspiracy over a substantial period of time are insufficient with regard to those acts that occurred before the limitations period, Turner v. Upton County, 967 F.2d 181, 185 (5th Cir. 1992).
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),
To the extent Plaintiff is alleging that he was maliciously prosecuted, in order to prevail he 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 plaintiffs 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). Plaintiff has failed to meet these requirements.
Plaintiffs claim for false arrest is barred because of his conviction. See Wells v. Bonner, 45 F-3d 90, 92 (5th Cir. 1995). See Sappington v. Bruce, 195 F.3d 234, 237 (5th Cir. 1999) (holding that Heck bars recovery on a false arrest claim, because a "conviction for aggravated assault necessarily implies that there was probable cause for his arrest at that point in time"); Wells v. Bower, 45 F.3d 90, 95 (5th Cir. 1995).
Further, a civil rights complaint can be dismissed if the claim is barred by limitations. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). The Supreme Court has directed that federal courts should apply the state's general personal injury limitations period to § 1983 claims. Owens v. Okure, 488 U.S. 235, 249-50 (1989). The applicable limitations period in Texas is two years. See Piolrawski v. city of Houston, 51 F.3d 512, 514 n. 5 (5th Cir. 1995). It is clear from Plaintiffs complaint that all of Plaintiffs' claims alleged in his complaint are barred by limitations and should, therefore, be dismissed as frivolous.
The Court finds that:
(1) Plaintiffs complaint is frivolous and should be dismissed with prejudice.
(2) This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 and 1915A, 42 U.S.C. § 1997e, and Adepegba v. Hamnons, 103 F.3d 383 (5th Cir. 1996).
(3) Plaintiff paid the $150,00 filing fee on January 29, 2003; therefore, the Texas Department of Criminal Justice, Institutional Division shall release the holdplaced on Plaintiff's inmate trust account by the PLRA Filing Fee Order entered on January 10, 2003.
(4) Plaintiffs motion to amend and supplement his complaint is denied.
(5) Any pending motions are denied.
SO ORDERED.
Judgment shall be entered accordingly.
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,
JUDGMENT
For the reasons stated in the Court's Order of even date,It is ORDERED, ADJUDGED, AND DECREED that Plaintiffs civil rights complaint and all claims alleged therein are dismissed with prejudice as frivolous.