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Matthews v. State of Texas

United States District Court, N.D. Texas
Sep 29, 2003
No. 3:03-CV-0064-R (N.D. Tex. Sep. 29, 2003)

Opinion

No. 3:03-CV-0064-R

September 29, 2003


FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE TUDGE


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 are as follows:

I. BACKGROUND

Plaintiff, a prisoner currently incarcerated in the Nevada Department of Corrections, brings this action pursuant to 42 U.S.C. § 1983. (Am. Compl. at 1.) He sues the State of Texas, Dallas County, the City of Dallas, and two attorneys who previously represented him in criminal matters. (Id. at 1-3.)

In or about May 1990, plaintiff pled guilty to "retaliation" and was placed on five years deferred adjudication probation in Texas. ( See Compl. at 5A; Mot. to Extend Clarify Compl. attached to Compl.) Plaintiff was incarcerated in September 1990 and in January 1991 on charges related to an "earlier arrest." ( See Compl. at 3A, 9B ¶ 2; Am. Compl. at 5.) He claims that his attorney failed to advise him of the outstanding warrants when he pled to the retaliation, and that he would not have pled if he had known of these misdemeanor warrants. ( See Compl. at 5 A; Am. Compl. at 5; Motion to Am. Compl. attached to Am. Compl. at 2.) He further claims that these "conditions made the probation hard to do and kept [his] life unstable forcing [him] to relocate to another state." ( See Am. Comp. at 5.)

On January 6, 1992, plaintiff was the victim in an assault involving a knife in Las Vegas, Nevada. ( See Compl. at 5 and attachments to Compl.) He claims that the incident was listed as an arrest on NCIC, where Texas picked it up. ( See Compl. at 6.) He was arrested on February 5, 1992 for violating the terms of his probation, and his probation was revoked sometime in 1992. ( See Compl. at 3, 5.) Plaintiff was subsequently convicted of "retaliation" and served two years in the Texas prison system for such conviction. (See Mot. to Extend Clarify Compl. attached to Compl.) Plaintiff alleges that his probation was wrongfully revoked on the basis on the January 6, 1992 incident in which he was a victim, not a perpetrator. ( See Compl. at 6; Mot. to Extend Clarify Compl. attached to Compl.; Am. Compl. at 3.) He further claims that he did not learn until May 2002 that his attorney had failed to investigate the basis for the probation violation or the incident, and that he would not have waived his right to a probation violation hearing if he had known of his attorney's failure. ( See Compl. at 3; Am. Compl. at 4.) Plaintiff seeks to have his "retaliation conviction set aside and the probation contract enforced." (Am. Compl. at 9.) He also seeks monetary damages. ( Id.)

On May 19, 2003, plaintiff filed a motion to modify/amend complaint wherein he seeks leave to amend his amended complaint to request punitive and exemplary damages and to assert state-law claims in addition to his § 1983 claims. ( See Mot. to Modify/Amend Compl.) He also filed a motion to extend complaint which is essentially another request to amend or supplement his complaint. ( See Mot. to Extend Compl.) No process has been issued in this case.

II. PRELIMINARY SCREENING

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 a governmental entity and its officers or employees, plaintiff's 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," if it "fails to state a claim upon which relief may be granted," or if it "seeks monetary relief against a defendant who is immune from such relief."

A complaint 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 when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994) "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996). In addition, 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. Conky 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).

III. SECTION 1983 RELIEF

Plaintiff seeks monetary damages and other relief under 42 U.S.C. § 1983 against various defendants for events related to a 1992 revocation of probation and subsequent conviction for retaliation. Section 1983 "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.

As part of the relief he seeks in this action, plaintiff wants the Court to set aside a state conviction and enforce a probation contract. ( See Am. Compl. at 9.) However, such relief is not appropriate for actions brought pursuant to 42 U.S.C. § 1983. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974) (holding that release from imprisonment is an inappropriate remedy under § 1983). Accordingly, this requested relief does not survive summary dismissal. Thus, plaintiffs only potentially viable claim in this action is his request for monetary damages.

The Court declines to construe this civil action as a petition for a writ of habeas corpus. In filings with the Court, plaintiff has unambiguously indicated that he has filed or intends to file for habeas relief in a separate action. Furthermore, the instant complaint specifically asks for monetary damages — relief that is unavailable in a habeas action.

IV. HECK BAR

When a prisoner seeks monetary damages in a § 1983 action, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if so, the complaint must be dismissed unless the plaintiff demonstrates that the conviction or sentence has been 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 collateral proceedings under 28 U.S.C. § 2254 or 2255. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In other words, an individual "may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or federal habeas court has determined that the terms of confinement are in fact invalid." See Danner v. Tolbert, No. 301-CV-0579-X, 2001 WL 1142797, at *1 (N.D. Tex. Sept. 25, 2001) (order accepting findings and recommendation) (citing Heck and Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994)).

In this instance, the crux of plaintiff's complaint is that defendants violated his constitutional rights when the State revoked his probation and subsequently convicted him of retaliation. If the Court were to grant plaintiff damages for the claims against defendants, such a ruling would necessarily implicate the validity of his retaliation conviction and probation revocation. See Heck, 512 U.S. 486-87; Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (applying Heck in context of probation revocation proceedings). Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under § 1983. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (§ 1983 action).

Plaintiff has failed to make such a showing. Consequently, plaintiff's § 1983 claims are "legally frivolous" within the meaning of 28 U.S.C. § 1915. See Hamilton, 74 F.3d at 103. The Court should dismiss them "with prejudice to their being asserted again until the Heck conditions are met." Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); see also, Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994) (upholding dismissal with prejudice); Stephenson, 28 F.3d at 27-28 (same).

V. INAPPLICABILITY OF HECK

Throughout his various pleadings, plaintiff contends that Heck does not bar this action. To the extent the Court were to find Heck inapplicable, plaintiff would still have no viable action under 42 U.S.C. § 1983 against any named defendant.

A. State of Texas

Plaintiff sues the State of Texas as the "convicting state." (Am. Compl. at 2.) However, " [t]he Eleventh Amendment secures the states' immunity from private suits for monetary damages filed in federal court." Neinast v. Texas, 217 F.3d 275, 280 (5th Cir. 2000). Nevertheless, Congress has the power to abrogate that immunity through the Fourteenth Amendment. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-76 (2000). Further, the State may waive its immunity by consenting to suit. ATT Communications v. BellSouth Telecommunications Inc., 238 F.3d 636, 643 (5th Cir. 2001). "Additionally, the Supreme Court has for nearly a century allowed suits against state officials for prospective injunctive relief to end a continuing violation of federal law under the doctrine of Ex pane Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)." ATT Communications, 238 F.3d at 643.

In this instance, plaintiff has only one viable claim for relief — monetary damages. He seeks no prospective injunctive relief. The State has not waived its immunity by consenting to suit. Nor has Congress abrogated the Eleventh Amendment immunity by enacting 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that States are not persons subject to suit under § 1983, because of the Eleventh Amendment). For all of these reasons, any claim against the State of Texas would necessarily fail. B. Municipal Parties

Plaintiff also asserts claims against Dallas County and the City of Dallas. (Am. Compl. at 1.) He contends that Dallas County is "responsible for custody and parent or original probation managing." (Id. at 2.) He contends that the City of Dallas is "responsible for investigation and arrest warrants." (Id.)

Section 1983 may impose liability on a municipality, such as Dallas County or the City of Dallas, "for a deprivation of rights protected by the Constitution or federal law only if that deprivation is inflicted pursuant to an official, municipal policy." Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995) (emphasis added). An "official policy" that may impose liability upon a municipality is either

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [municipal] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy.
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) ( (en banc); accord, Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).

In this case, plaintiff does not allege any policy, practice, or custom of the Dallas County or the City of Dallas that violated his civil rights. His pleadings reveal only a single incident specific to plaintiff. A single "act is not itself a custom." Pineda, 291 F.3d at 329. "Isolated violations are not the persistent, often repeated, constant violations, that constitute custom and policy as required for municipal section 1983 liability." Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984).

"A customary municipal policy cannot ordinarily be inferred from single constitutional violations." Piotmwski v. City of Houston, 237 F.3d 567, 581 (5th Cir.), cert. denied, 534 U.S. 820 (2001). Consequently, this action cannot stand against Dallas County or the City of Dallas.

Furthermore, although the City may be held liable under 42 U.S.C. § 1983 if a custom or policy deprives plaintiff of his constitutional rights, a municipality cannot be liable under § 1983 simply because it employs a tortfeaser. See Monell v. Department of Soc. Servs., 436 U.S. 658, 691-92 (1978). "The `official policy' requirement . . . make [s] [it] clear that municipal liability [under § 1983] is limited to action for which the municipality is actually responsible . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). "Consequently, the unconstitutional conduct must be directly attributable to the municipality through some sort of official action or imprimatur; isolated unconstitutional actions by municipal employees will almost never trigger liability." Piotrowski, 237 F.3d at 578 (footnote omitted). `"[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by [municipal] policymakers." City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur, 475 U.S. at 483-84). Plaintiff has presented no facts that support municipal liability under 42 U.S.C. § 1983.

C. Attorneys

`Plaintiff also sues two court-appointed attorneys in this action. ( See Am. Compl. at 2-3.) These former attorneys are not state actors for purposes of § 1983. Nevertheless, 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, plaintiff's "must allege facts that suggest: 1) 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).

Attorneys 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. Further, plaintiff has alleged no agreement between his former attorneys and any state actor to commit an illegal act. Without an allegation of some agreement between his former attorneys and a state actor, plaintiff has failed to state a viable claim under § 1983 against such attorneys.

VI LEAVE TO AMEND

Plaintiff has sought leave to amend his amended complaint to request punitive and exemplary damages and to assert state-law claims in addition to claims under 42 U.S.C. § 1983. ( See Mot. Modify/Amend Compl.; Mot. Extend Compl.) The Court should freely grant leave to amend "when justice so requires." See Fed.R.Civ.P. 15(a). Nevertheless, such leave is not automatically granted. See Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."
Whitmire v. Victus Ltd., 212 F.3d 885, 889 (5th Cir. 2000) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

In this instance, the proposed amendments do not cure the deficiencies of plaintiff s action. Were the Court to allow the amendments, plaintiff's federal claims would still be barred under Heck or fail to state a claim against the named defendants for the reasons already discussed. The Court would thus decline to exercise supplemental jurisdiction over the pendent state-law claims. See LaPorte Constr. Co. v. Bayshore Nat'l Bank, 805 F.2d 1254, 1257 (5th Cir. 1986) (holding that when the Court dismisses the federal claims at a preliminary stage of litigation, judicial economy argues against the exercise of pendent or supplemental jurisdiction over state claims). Because granting plaintiff leave to amend does not cure the deficiencies of this action, the Court should deny leave and dismiss plaintiff's federal and constitutional claims under Heck or for failure of plaintiff to state a claim upon which relief can be granted.

VII. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court DENY plaintiff leave to amend his amended complaint and summarily DISMISS plaintiff's complaint under 42 U.S.C. § 1983 with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994). To the extent Heck is inapplicable, the Court should DISMISS this action for failure of plaintiff to state a claim upon which relief may be granted. The dismissal of this action, whether under Heck or otherwise, will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).

Section 1915(g), which is commonly known as the "three-strikes" provision, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

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 served 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 served 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 Sews. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( (en banc).


Summaries of

Matthews v. State of Texas

United States District Court, N.D. Texas
Sep 29, 2003
No. 3:03-CV-0064-R (N.D. Tex. Sep. 29, 2003)
Case details for

Matthews v. State of Texas

Case Details

Full title:FELTON L. MATTHEWS, JR, ID # 72823, Plaintiff, vs. STATE OF TEXAS, et al.…

Court:United States District Court, N.D. Texas

Date published: Sep 29, 2003

Citations

No. 3:03-CV-0064-R (N.D. Tex. Sep. 29, 2003)