Opinion
No. 3:04-CV-0596-G.
May 20, 2004
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 cause 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 action brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Hughes Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Gatesville, Texas. Defendants are Tarrant County Assistant District Attorney Christy Jack and Attorney Robert William. The court has not issued process in this case. Statement of Case: Plaintiff seeks to sue the prosecuting attorney and his own defense counsel for allegedly threatening and coercing him to plead guilty to a forty-year sentence or risk life imprisonment or even the death penalty. He seeks monetary relief.
The complaint form names two additional plaintiffs at page two: (1) Toni Thompson from Athens, Texas, and Linda Rockmore, from Fort Worth, Texas. Since neither individual signed the complaint or submitted a motion for leave to proceed in forma pauperis, they should not be considered as plaintiffs in this action. See Fed.R.Civ.P. 11(a) (requiring each party proceeding pro se to sign the complaint).
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. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Any claim for monetary damages against Assistant District Attorney Jack is 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 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 claim against Jack is based on actions taken in her role as prosecutor during the events leading to Plaintiff's plea as well as at the plea proceeding. Because the above conduct was taken in Jack's role as State advocate, she 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).
Plaintiff's claims against Defense Counsel Williams fare no better. 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, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988).
It is 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, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (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).
Insofar as Plaintiff alleges he was falsely arrested and his prosecution stemmed from a racially motivated conspiracy (Complaint at 2 and 3), his claims are conclusory at best and he has failed to name any individual responsible for the alleged false arrest. Nevertheless no civil rights action could be brought challenging his guilty plea and forty-year sentence, for which Plaintiff is presently incarcerated in TDCJ-CID, until the requirements of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), are satisfied.
Plaintiff's complaint fails to allege any cognizable claim for relief against the named defendants under § 1983. Therefore, the complaint should be dismissed with prejudice as frivolous and for seeking monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii). RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous and for seeking monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).
A copy of this recommendation will be mailed to Plaintiff Richard Barker, #925332, TDCJ, Hughes Unit, Rt. 2 Box 4400, Gatesville, Texas 76597.
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 to Douglass 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.