Opinion
3:01-CV-164-G.
July 27, 2001
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 pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is a pre-trial detainee presently incarcerated at the Dallas County Jail in Dallas, Texas. Defendants are Judge Mark Nancarrow, District Attorney Bill Hill, Attorney Gary Unell, Dallas Police Officer James Brigdon (previously named as an unidentified Dallas Police Officer), and two unidentified bailiffs. The court has not issued process in this case. However, on March 8, 2001, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on April 2, 2001.
Plaintiff identifies Defendant Brigdon for the first time in answer to the magistrate judge's questionnaire. (Answer to Question 3(d)).
Statement of Case: The material allegations on which Plaintiff's complaint and answers to the magistrate judge's questionnaire are predicated are as follows: On December 13, 2000, while awaiting to meet his appointed counsel in an holdover cell, one of the two bailiffs present escorted Plaintiff to an attorney booth. While there Defendant Brigdon, the officer filing the charges presently pending against Plaintiff, took a photograph of Plaintiff without his consent and in the absence of his appointed counsel. (Complaint ¶¶ IV and V). Neither bailiff stopped Officer Brigdon, thereby allegedly assisting in the investigation of Plaintiff's case and the subsequent filing of charges against him on or about December 18 and 19, 2000. On January 11, 2001, a detention officer attempted to serve Plaintiff with a copy of an indictment, which Plaintiff refused to accept.
The complaint, supplemented by the answers to the magistrate judge's questionnaire, alleges that Judge Nancarrow failed to rectify the violations of Plaintiff's constitutional rights in connection with the unlawful taking of the photograph and failed to ensure that "every officer obeys the law of the courts when its [sic] brought to his attention. . . ." (Complaint T V and handwritten attachment). The complaint further alleges that Judge Nancarrow and District Attorney Hill failed to respond to Plaintiff's letters and motions requesting an examining trial. (Complaint ¶ V and Answer to Question 3). Regarding Attorney Unell, the complaint asserts that he failed to stop the illegal taking of the photograph, although he observed the whole event from the side of the room. (Answer to Question 3). The complaint further asserts that Unell acted unethically throughout his representation of Plaintiff and should not have been permitted to withdraw as counsel for Plaintiff unless and until he testified about the events leading to the taking of the illegal photograph. (Complaint ¶ IV.B and Answer to Question 3). Plaintiff requests the District Court to order the state court "to follow the rules that we all are govern[ed] by. . . . [and] discipline those officer[s]." (Complaint ¶ V). 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:
Plaintiff has not answered question four of the questionnaire, which required him to identify the monetary damages, if any, that he was seeking against each of the defendants named in the complaint.
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) ("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").
Both sections 1915A(b) and 1915(e)(2)(B) provide 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, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (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 that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
The complaint requests the Court to order the state court "to follow the rules that we all are govern[ed] by. . . . [and] discipline those officer[s]." Federal courts are without power to issue writs of mandamus against state courts and state officers in the performance of their duties where mandamus is the only relief sought. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997); Moye v. Clerk. DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). The only relief requested in Plaintiff's complaint is mandamus type relief against the Defendants named in the complaint. Therefore, to the extent Plaintiff requests the issuance of a writ of mandamus, this court lacks the jurisdiction to do so. See Santee, 115 F.3d at 357 (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties).
Insofar as Plaintiff requests monetary damages, his claims against Judge Nancarrow are barred by absolute immunity. The alleged conduct of Judge Nancarrow occurred in the performance of the judge's judicial functions. It is well settled that "[j]udicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial discretion." Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); Graves v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993), abrogated on other grounds by Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994). "A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors." Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978).
A plaintiff can overcome judicial immunity by demonstrating that the jurist's actions are of a nonjudicial nature or that the jurist acted in the complete absence of jurisdiction.Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991). "A judge's acts are judicial in nature if they are `normally performed by a judge' and the parties affected `dealt with the judge in his judicial capacity.'"Boyd, 31 F.3d at 285 (quoted case omitted). A judge's acts are in complete absence of all jurisdiction if he proceeds in an area where it is clear he cannot act. See Brewer v. Blackwell, 692 F.2d 387, 397 (5th Cir. 1982) (state court judge making an invalid arrest).
The Fifth Circuit utilizes the following four-part test to determine if an act is judicial in nature:
(1) the act complained of is a normal judicial function,
(2) the events occurred in the judge's court or in his chambers,
(3) the controversy centered around a case then pending before the judge, and
(4) the confrontation or occurrence arose directly and immediately out of a visit to the judge in his or her judicial capacity.Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1217 (5th Cir. 1991); reh'g en banc, 959 F.2d 1283 (1992) (affirmed in relevant part, but prospective relief denied for lack of standing), cert. denied, 506 U.S. 866 (1992); Brewer v. Blackwell, 692 F.2d 387, 396-97 (5th Cir. 1982).
In the instant case Judge Nancarrow's actions — in failing to respond to Plaintiff's letters and motions requesting an examining trial and in failing to rectify the alleged violations of Plaintiff's constitutional rights in connection with the unlawful taking of the photograph — were of a judicial nature. The pleadings reflect that the actions in question were normal judicial functions, the events occurred in his court, the controversy centered around a case then pending before him, and the occurrence arose directly and immediately from events involving the judge in his judicial capacity. "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority. . . .'"Stump, 435 U.S. at 356-57, 98 S.Ct. at 1105 (quoted case omitted). Moreover, "[d]isagreement with the action taken by a judge . . . does not justify depriving that judge of his immunity," nor does the fact that tragic consequences ensue from the judge's action deprive him of his absolute immunity." Id. at 363-64, 98 S.Ct. at 1108-09.
Plaintiff's claims against District Attorney Hill fare no better. To the extent Plaintiff sues Hill because he is the District Attorney for Dallas County and, as such, was responsible for supervising all assistant district attorneys including the one responsible for Plaintiff's prosecution, his claim lacks an arguable basis in law. A supervisory official cannot be held vicariously liable for their subordinates' actions under § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978);Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert. denied, 488 U.S. 851 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). A supervisory official may be held liable only if he (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), cert. denied, 480 U.S. 916 (1987).
Insofar as Defendant Hill was responsible for Plaintiff s prosecution, any claims against him are barred by 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 or for trial. See Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 506-509, 139 L.Ed.2d 471 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir.),cert. denied, 522 U.S. 828 (1997). Plaintiff's claims against Hill are based on his actions as prosecutor in allegedly failing to respond to letters and motions requesting an examining trial.See Graves, 1 F.3d at 318.
Plaintiff's claims against Attorney Unell, Officer Brigdon, and the unidentified bailiffs likewise lack an arguable basis in law. 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).
As defense counsel, Defendant Unell, 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, 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), cert. denied, 479 U.S. 826 (1986).
Moreover, neither Officer Brigdon nor the unidentified bailiffs violated any of Plaintiff's constitutional rights. The taking of a photograph is not testimonial in nature. United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967) (noting with approval that most lower courts hold that the Fifth Amendment does not protect against compulsion to submit to fingerprinting, photographing, or measurements to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture); Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Similarly, the federal constitution guarantees neither a preliminary hearing nor an examining trial before an indictment. See Siwakowski v. Beto, 455 F.2d 915, 916 (5th Cir. 1972); Richardson v. Texas, 425 F.2d 1372, 1373 (5th Cir. 1970); Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969); Woods v. Texas, 404 F.2d 332, 332 (5th Cir. 1968).
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915(d) is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). He has failed to allege any cognizable claim for relief against the named defendants under § 1983. Inisofar as Plaintiff seeks monetary damages, Judge Nancarrow and District Attorney Hill are protected by absolute immune. Therefore, the complaint should be dismissed with prejudice as frivolous and for seeking monetary relief against defendants who are immune from such relief. See 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii). RECOMMENDATION:
Under other circumstances, where the complaint alleges a colorable claim, a federal court would be required to applyHeck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, in this instance the named Defendants are either absolutely immune or the complaint fails to allege a constitutional violation or color of state law. Thus, the court need not address Heck. The Fifth Circuit Court of Appeals has approved this approach. See Littles v. Bd. of Pardons Paroles Div., 68 F.3d 122, 122 (5th Cir. 1995) (per curiam) ("Even if a complaint is subject to dismissal under Heck, it remains appropriate for district court to resolve the question of immunity before reaching the Heck analysis."); Krueger v. Reimer 66 F.3d 75, 76 (5th Cir. 1995) (per curiam) (holding that despite applicability of Heck, district court may consider doctrine of absolute immunity as threshold matter in making 28 U.S.C. § 1915(d) frivolousness determination).
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. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).
It is further recommended that the Court Clerk will modify the docket sheet to reflect that Plaintiff has identified the unknown Dallas Police Officer as Officer Brigdon.
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 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.