Opinion
No. 3:01-CV-1658-M
May 14, 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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : Plaintiff, an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division and formerly incarcerated in the Dallas County Jail, has filed the instant unspecified civil action alleging violations of his constitutional rights. In his original complaint, he names "283rd Judicial District Court; Honorable Judge Dean" and "Dallas County District Attorney's Office; Bill Hill" as defendants. Through an amendment, he names Paul Johnson, his state-appointed defense attorney, as a defendant. No process has been issued in this case.
In an effort to flesh out plaintiff's claims and determine the precise defendants, the Court mailed plaintiff a Magistrate Judge's Questionnaire on January 9, 2002. Plaintiff completed and returned two substantially identical "Answers to Magistrate Judge's Questionnaire." The Court received one on January 22, 2002, and one on January 28, 2002. Plaintiff also submitted two attachments with his initial answers. The Court finds no need to differentiate between the two submissions. In his answers, plaintiff clarifies that he mistakenly listed the 283rd Judicial District Court as a defendant. He contends that the correct defendant is the 265th Judicial District Court. He also clarifies that he sues Judge Dean, the Dallas County District Attorney's Office, Bill Hill, and Paul Johnson, in addition to the 265th Judicial District Court.
Statement of the Case : Plaintiff filed this civil action on August 23, 2001. On December 7, 2001, the Court allowed him to amend his complaint by adding Mr. Johnson as a defendant. Plaintiff contends that the state District Attorney, Bill Hill, filed a criminal action against him with no physical evidence to support the action. Plaintiff contends that Judge Dean and the state district court failed to dismiss the state criminal action. Plaintiff further contends that his state attorney, Paul Johnson, lied to him. Plaintiff seeks dismissal of the state criminal action against him. He also seeks monetary damages. In a "Supplemental Motion to Amend" he seeks to place a specific dollar amount on his damages, i.e. $25,000,000. Furthermore, he seeks release from imprisonment in a recent "Emergency Motion for Final Judgment."
In his answers to the Magistrate Judge's Questionnaire, he clarifies that he wants "the Court to do whatever it can in reversing, dismissing, or anything else that the Court can do in providing . . . relief [from] the illegal [state] case." (Answer to Question 1 of Magistrate Judge's Questionnaire.) He further requests a criminal investigation as relief. ( Id.)
II. Screening for Frivolity
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiffs complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or "malicious" or if it "fails to state a claim upon which relief may be granted" or "seeks monetary relief against a defendant who is immune from such relief."
A claim is frivolous, when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law, furthermore, when it is "based on an indisputably meritless legal theory." Id. at 327. A claim lacks an arguable basis in fact, when it describes "fantastic or delusional scenarios." Id. at 327-28. A complaint fails to state a claim upon which relief may be granted, on the other hand, 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); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Plaintiffs claims appear to arise out of 42 U.S.C. § 1983. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
In response to the Court's inquiry as to the statutory basis for his claims, plaintiff identified three state rules. The Court, nevertheless, construes his action as one arising under 42 U.S.C. § 1983. Violations of state rules do not give rise to federal jurisdiction.
III. Findings
Plaintiff has no claim that survives summary dismissal. He seeks some relief that is simply unavailable in this civil action. He also seeks relief from individuals who are either immune from suit or not a proper defendant under § 1983. He further seeks relief from entities who are not subject to suit under § 1983. The action is properly dismissed in its entirety, furthermore, under Heck v. Humphrey, 512 U.S. 477 (1994).
Although Heck provides a means to dismiss this § 1983 action in its entirety, the action also raises issues of immunity which are best addressed as a threshold matter. When an action raises an issue of immunity, the Court to the extent it is feasible to do so should determine that issue as early in the proceedings as possible. Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462 n. 6 (5th Cir. 1998); Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995); Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Such early determination "best serves the purposes underlying the absolute immunity doctrine." Boyd, 31 F.3d at 284. When a plaintiff seeks relief unavailable under 42 U.S.C. § 1983 or sues individuals or entities who are not proper parties under § 1983, it also seems appropriate to have an early determination of those issues.
Under Heck, when a successful civil rights action would necessarily imply the invalidity of a plaintiffs conviction or sentence, the complaint must k dismissed, unless plaintiff demonstrates that the conviction or sentence has ken reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of hakas corpus under 28 U.S.C. § 2254. 512 U.S. at 486-87.
The crux of plaintiff's complaint is that he is king unlawfully held, cause the trial court did not dismiss the criminal action against him, the prosecutor filed the criminal action against him, and his defense attorney did not adequately represent him. As will as seen infra, his only viable basis for relief in this action under 42 U.S.C. § 1983 is for monetary damages. A ruling granting the requested relief would necessarily implicate the validity of his confinement. Accordingly, under Heck, he must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under 42 U.S.C. § 1983.
Plaintiff has failed to make such a showing. He has taken no steps in state court to invalidate his criminal conviction. (Answer to Question 2 of Magistrate Judge's Questionnaire.) Nothing in his complaint or the answers to the Magistrate Judge's Questionnaire, furthermore, indicates that his conviction has ken successfully overturned, reversed on appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court in a habeas proceeding. Until plaintiff receives a ruling declaring his conviction invalid, no action shall accrue under § 1983. Heck, 512 U.S. at 486-87. His § 1983 complaint has no basis in law and should, therefore, be dismissed as frivolous. Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (holding that "[a] § 1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question").
A. Available Relief
As part of the relief he seeks, plaintiff wants dismissal or reversal of the state criminal action against him. He also wants to be released from imprisonment. Such relief, however, is an inappropriate remedy in an action brought pursuant to 42 U.S.C. § 1983. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Accordingly, these claims for relief do not survive summary dismissal. Furthermore, to the extent plaintiff seeks a writ of mandamus to order the state court or its judicial officers to dismiss the state criminal action, this Court lacks authority to make such an order. See Moye v. Clerk, Dekalb County Sup.Ct., 474 F.2d 1275, 1276 (5th Cir. 1973). In addition, to the extent plaintiff seeks a writ of habeas corpus, such writ must be dismissed because plaintiff has not exhausted his state remedies.
Plaintiff indicates in his answer to Question 2 of the Magistrate Judge's Questionnaire that he has pursued no state remedies. One must fully exhaust state remedies before seeking federal habeas relief under 28 U.S.C. § 2254(b). This entails submitting the factual and legal basis of any claim to the highest available state court for review. Richardson v. Procurder, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). A Texas prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautisw v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432. To exhaust in accordance with § 2254, a petitioner must fairly present all claims to the state courts prior to raising them in federal court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).
A federal district court may notice sua sponte the lack of exhaustion. Shine v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled, furthermore, that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Baunsta, 793 F.2d at 110.
In this case, plaintiff has presented no claim to the Texas Court of Criminal Appeals. That court has thus had no opportunity to review the claims raised herein. Accordingly, a ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Plaintiff is, therefore, not entitled to habeas corpus relief for failure to exhaust his state remedies.
Plaintiff also seeks monetary damages and a criminal investigation as relief in this action. The requested criminal investigation is simply not available though a civil action. Cf. Jones v. Conway, No. Civ.A. 92-3883, 1992 WL 185578, at *1 (E.D. Pa. July 21, 1992) (holding that bringing criminal charges against defendants is not relief available under 42 U.S.C. § 1983). "Criminal statutes can neither be enforced by civil action nor by private parties." Hassell v. United States, No. 3:97-CV-1882-P, 1999 WL 444554, at *2 (N.D. Tex. May 28, 1999). There is no constitutional right, furthermore, to have someone criminally prosecuted. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). There is likewise no constitutional right to have someone criminally investigated. The Court should dismiss plaintiffs claim for relief that seeks a criminal investigation. Plaintiff thus has only one proper basis for relief under § 1983, i.e. monetary damages.
B. Claims Against State Judge
Plaintiff asserts that District Judge Keith Dean failed to dismiss a state criminal action against plaintiff Judges, however, are absolute immune to monetary damages while acting in the performance of their judicial duties. See Nixon v. Fitzgerald, 457 U.S. 731, 745-46 (1982). Judges are immune from suit for damages resulting from any judicial act, unless performed in "the clear absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-357 (1978); Young v. Biggers, 938 F.2d 565, 569 n. 5 (5th Cir. 1991). Allegations of bad faith or malice do not overcome judicial immunity. Mireles, 502 U.S. at 11. "The fact that it is alleged that the judge acted pursuant to a conspiracy and committed grave procedural errors is not sufficient to avoid absolute judicial immunity." Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991).
In this case, plaintiff alleges no facts that suggest that Judge Dean acted without jurisdiction. His claims against Judge Dean rest on the alleged failure of the judge to dismiss a state criminal action against plaintiff Plaintiff contends that no concrete evidence supported trying or convicting him of aggravated sexual assault of a minor. Plaintiff is essentially trying to hold the judge liable for performing judicial acts. Judges, however, are immune from monetary damages for such claims. Judge Dean is thus completely immune from damages on the claims asserted against him. Accordingly, there is no basis for holding him liable. Plaintiffs claims against him should be dismissed as frivolous.
C. Claims Against District Attorney
Plaintiff alleges that District Attorney Bill Hill maliciously prosecuted him by filing a criminal action without any physical evidence to support a conviction. The District Attorney has absolute immunity to the malicious prosecution claim. See Brummett v. Camble, 946 F.2d 1178, 1181 (5th Cir. 1991). Prosecutors enjoy absolute immunity to initiate and pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
D. Claims Against Defense Attorney
Plaintiff also seeks monetary damages from his defense attorney under 42 U.S.C. § 1983. He claims that his attorney knowingly and willingly lied to him and failed to deliver a motion to quash to the trial court; failed to request dismissal of the criminal action against plaintiff; and failed to represent him. (Answer to Question 3 of Magistrate Judge's Questionnaire.) His defense attorney, furthermore, is a private attorney appointed to represent him by the state court. (Answer to Question 4 of Magistrate Judge's Questionnaire.)
To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999). In certain circumstances, private parties may be acting "under color of state law" and thus held liable under § 1983.
`Private persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of the statute. To act `under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.'Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). To support such a conspiracy claim, plaintiffs "must allege facts that suggest: I) an agreement between the private and public defendants to commit an illegal act and 2) an actual deprivation of constitutional rights." Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations omitted).
To find state action by a private individual in the absence of an alleged conspiracy, a plaintiff must show that the private actor "performs a function which is traditionally the exclusive province of the state" or that "there is a nexus between the state and the action of the private defendant such that the action is fairly attributable to the state." Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989). Under the latter alternative,
a finding of state action is justified "`only where it can be said that the state is responsible for the specific conduct of which the plaintiff complains.' A state is not responsible for a private party's decisions unless it `has exercised coercive power or has provided such significant encouragement, . . . that the choice must in law be deemed to be that of the state.'"Id. (citations omitted).
Plaintiff has no viable action under § 1983 against his attorney. His attorney is not a state actor. Nor has plaintiff alleged a conspiracy between him and any state actor. He has alleged no agreement between his attorney and any state actor to commit an illegal act. In fact, he indicates that he does "not have the proper evidence/facts to sue for conspiracy to unlawfully prosecute." (Answer to Question 7 of Magistrate Judge's Questionnaire.) Attorneys, furthermore, do not perform a function that is traditionally the exclusive province of the state when they represent a criminal defendant in a criminal proceeding. In addition, there is no nexus between the State and the actions of the attorney such that the attorney's actions are fairly attributable to the State. For all of these reasons, plaintiff has no viable claim under § 1983 against the attorney.
E. Claims Against State District Court and District Attorney's Office
The claims against the 265th Judicial District Court and the Dallas County District Attorney's Office likewise fail. A plaintiff may not bring a civil rights action against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991) (holding that a police department is not a jury entity). In Darby, the Fifth Circuit held that "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. at 313. Neither the state court nor the district attorney's office are jural entities that can be sued. Jacobs v. Port Neches Police Dep't, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (holding that county district attorney's office is not a legal entity capable of suing or being sued); Martinez v. 291st Judicial Dist. Court, No. 3:01-CV-1907-X, 2001 WL. 1478796, at *2 (N.D. Tex. Nov. 19, 2001) (adopting recommendation that the claims against a state district court should be dismissed for failure to sue a proper jural entity). Plaintiff thus seeks relief from entities that are not subject to suit under § 1983. Consequently, the action against them should be dismissed as frivolous under 28 U.S.C. § 1915(e)(2) and 1915A.
The Court could dismiss the claims against the 265th Judicial District Court and the Dallas County District Attorney's Office without prejudice to plaintiff's filing an amended complaint that names a proper defendant. It declines to do so in this instance. Plaintiff has already had one opportunity to amend his complaint to add an additional defendant. In light of the applicability of Heck, furthermore, any amendment would be futile at this juncture.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b). As such recommendation completely disposes of the action against all named defendants, the Court need not concern itself with dismissing the action under Heck v. Humphrey, 512 U.S. 477 (1994). It is further recommended that the District Court DENY the Supplemental Motion to Amend (doc. 15) filed January 28, 2002, and the Emergency Motion for Final Judgment (doc. 19) filed by plaintiff on May 2, 2002.To the extent the complaint of plaintiff seeks habeas corpus relief under 28 U.S.C. § 2254, it is also recommended that the Court DISMISS the complaint without prejudice for the failure of plaintiff to exhaust state remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being sewed with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being sewed with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).