Opinion
EP-22-CV-00283-KC-MAT
03-31-2023
FRANCISCO J. CASTANEDA, Plaintiff, v. YVONNE ROSALES, LILY STROUD, and PENNY HAMILTON, Defendants.
REPORT AND RECOMMENDATION
MIGUEL A. TORRES UNITED STATES MAGISTRATE JUDGE
On this day, the Court sua sponte considers the status of the above-captioned matter. On February 8, 2023, the Court granted Plaintiff Francisco Castaneda's (“Plaintiff”) application to proceed in forma pauperis (“IFP”), and his Complaint was thereafter filed. (ECF Nos. 7, 9). The Court has now screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915 and submits this Report and Recommendation. For the reasons set forth below, the Court RECOMMENDS that Plaintiff's Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment claims be DISMISSED WITH PREJUDICE and that his Eighth Amendment claim be DISMISSED WITHOUT PREJUDICE.
I. BACKGROUND
Plaintiff is a state prisoner confined at the Wainright Unit of the Texas Department of Criminal Justice in Lovelady, Texas, where he is serving a life sentence without parole. See Tex. Dep't of Crim. J., https://inmate.tdcj.texas.gov/InmateSearch/search.action (Search for TDCJ No. 01620126) (last visited Feb. 24, 2023).
Plaintiff alleges that Defendants violated several of his constitutional rights during his state criminal case. Plaintiff names Yvonne Rosales, Lily Stroud, and Penny Hamilton as Defendants, and suggests that they were attorneys and the judge in his state criminal case. (See ECF No. 9, p. 2-3). Plaintiff never specifies which Defendant was the judge, which were attorneys, or which side each attorney represented, but lists each Defendant's address as the Office of the El Paso District Attorney. See District Attorney, El Paso Cnty., https://www.epcounty.com/da/contact.htm (last visited Mar. 2, 2023).
Plaintiff first asserts that his state court criminal conviction is “void, illegal and unconstitutional” because “there was no complaint, no affidavit, no jurat filed to [the] county [g]rand jury,” and, for this reason, “the trial court judge could not acquire jurisdiction over the state case ....” (Id. at 2).Plaintiff alleges that Defendants' failure to make these submissions violated Articles 2.04, 2.05, and 2.06 of the Texas Code of Criminal Procedure. (Id.) These violations, in turn, deprived him of his rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution. (Id.)
Citations to this and other submissions whose pages are not consecutively numbered by their authors refer to the page numbers imprinted thereon by the Court's Case Management and Electronic Case Filing system.
Next, Plaintiff alleges that Defendants are liable for ineffective assistance of counsel and for violating his “right to a fair impartial trial” under the Sixth Amendment for “allow[ing]” and “fail[ing] to object” to the alleged violations of the Texas Code of Criminal Procedure. (Id. at 3). This conduct violated his rights to due process and equal protection and resulted in false imprisonment under the Fourth Amendment. (Id.)
The Sixth Amendment guarantees a criminal defendant's right to trial “by an impartial jury.” This right is sometimes referred to as the “right to a fair trial.” See, e.g., United States v. Jensen, 41 F.3d 946, 959 (5th Cir. 1994).
Plaintiff also asserts, without elaboration, that Defendants violated his rights under the Eighth and Ninth Amendments. (Id.)
For relief, Plaintiff requests $1,500.00 for each day he has been incarcerated for false imprisonment and cruel and unusual punishment; additional damages in the amount of $1,000,000.00 for the alleged violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments; and $10,400.00 for legal and filing fees. (Id. at 5).
I. STANDARDS OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B)(i) & (ii), a court must dismiss an IFP complaint “at any time” if it determines that the complaint is frivolous or malicious or fails to state a claim upon which relief may be granted.“During screening, a court accepts the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff.” Muzamhindo v. Warden, W. Tex. Det. Facility, No. EP-18-CV-203-KC, 2018 WL 11451387, at *1 (W.D. Tex. Nov. 2, 2018) (citing Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014)).
A court may sua sponte dismiss under § 1915 even before serving the defendants. See Neitzke v. Williams, 490 U.S. 319, 324 (1989) (explaining that § 1915 dismissals often happen sua sponte and before service “to spare prospective defendants the inconvenience and expense of answering such complaints”).
“A complaint is frivolous if it lacks an arguable basis in law or fact. A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (quotations omitted). “A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Id. (quotation omitted).
To determine whether an IFP complaint fails to state a claim on which relief may be granted, courts analyze the complaint under the Rule 12(b)(6) motion to dismiss standard. See Hale v. King, 642 F.3d 492, 497-99 (5th Cir. 2011) (per curiam). To survive that analysis, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” by alleging “actual facts, not legal conclusions masquerading as facts.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). A “plausible claim for relief” exists when the factual allegations infer a defendant's actual misconduct, not a “mere possibility of misconduct.” Iqbal, 556 U.S. at 679.
In addition, because Plaintiff is proceeding pro se, his pleadings are entitled to a liberal construction and are reviewed under a less stringent standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). However, this standard does “not excuse the complaint's failure to demonstrate a non-frivolous claim.” Morningstar v. Patel, No. 3:20-cv-277-NBB-JMV, 2021 U.S. Dist. LEXIS 217814, at *6 (N.D. Miss. Mar. 25, 2021) (citing Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991)), report and recommendation adopted, 2021 U.S. Dist. LEXIS 216553 (Nov. 9, 2021).
II. DISCUSSION AND ANALYSIS
Plaintiff alleges that the judge and certain attorneys involved in his state criminal case violated his rights under the United States Constitution. Because Plaintiff asserts that state actors violated his constitutional rights, the Court construes his claims as arising under 42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”); Chang v. Whitworth, No. 3:21-CV-1165-S-BK, 2022 WL 2111045, at *3 (N.D. Tex. Apr. 29, 2022) (construing pro se plaintiff's allegations of civil rights violations against state actors as claims arising under § 1983). For the following reasons, the Court finds that Plaintiff's claims are either frivolous or fail to meet the 12(b)(6) standard and recommends that they be dismissed.
A. Fourth, Fifth, Sixth, and Fourteenth Amendment Claims
In Heck v. Humphrey, the Supreme Court held that a plaintiff who attacks the validity of their criminal conviction through § 1983 claims must prove 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus.” 512 U.S. 477, 486-87 (1994). The Heck doctrine applies where success on § 1983 claims “would implicitly question the validity of conviction.” Muhammad v. Close, 540 U.S. 794, 751 (2004). “If specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction, then a plaintiff's [§ 1983] claim is barred by [Heck].” Ducksworth v. Rook, 647 Fed.Appx. 383, 386 (5th Cir. 2016) (citing Bush v. Strain, 513 F.3d 492, 498 n.14 (5th Cir. 2008)); see also Bush, 513 F.3d at 498 n.14 (“[A] plaintiff's claim is Heck-barred despite its theoretical compatibility with his underlying conviction if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction.” (quoting McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006))). Claims that are Heck-barred are legally frivolous and thus subject to sua sponte dismissal pursuant to § 1915(e)(2). See Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994) (“Dismissal of the § 1983 action under 28 U.S.C. § 1915[] is appropriate, post-Heck, because the plaintiff's action has been shown to be legally frivolous.”).
At one point in his Complaint, Plaintiff suggests that he is suing Defendants in their individual capacities. (See ECF No. 9, p. 2 (“[T]he defendants named in their individual capacities violated state laws ....”)). The Court notes that whether Plaintiff is suing Defendants in their personal or official capacities is not relevant to the Heck analysis. See Hoyle v. City of Hernando, No. 3:21-cv-00171-NBB-RP, 2022 WL 4486997, at *3 (N.D. Miss. Sept. 27, 2022) (“[T]he Heck bar applies to claims against defendants in both their individual and official capacities.” (citing Shaw v. Tex., No. A-20-CV-561-RP, 2020 WL 5366289, at *3 (W.D. Tex. Sept. 8, 2020))).
Plaintiff's allegations that his conviction is “void” and that Defendants “allowed” it to become void plainly call its validity into question. See Bernegger v. Grimmet, 562 Fed.Appx. 219 (5th Cir. 2014) (holding that the plaintiff's claim that his conviction was void would, if successful, imply its invalidity); Eldred v. Prince, No. 5:17-CV-12, 2017 WL 4053851, at *2 (E.D. Tex. Sept. 14, 2017) (finding that, if proven, the plaintiff's assertion that his conviction was void due to the defendants' failure to submit an affidavit or jurat to the grand jury in his criminal case “would call the validity of [the] conviction into question”). The same is true of his contention that Defendants “failed to object” to the alleged state law violations identified in the Complaint. See Boyd, 31 F.3d at 283 (finding that the plaintiff's ineffective assistance of counsel claim would, if granted, implicate the invalidity of his conviction (citing Strickland v. Washington, 466 U.S. 668 (1984))). Accordingly, because Plaintiff's factual allegations are “directed at the validity of [his] criminal proceeding,” he must show that his conviction has already been invalidated in order to proceed with his lawsuit. Charles v. Louisiana, 2010 WL 3002297, at *2 (W.D. La. June 9, 2010), report and recommendation adopted, 2010 WL 3001337 (W.D. La. July 28, 2010).
While Plaintiff does not address whether he has successfully challenged his conviction, the Court takes judicial notice of U.S. District Judge Kathleen Cardone's dismissal of his federal petition for writ of habeas corpus. Castaneda v. Lumpkin, No. EP-22-cv-282-KC, 2022 WL 17724418 (W.D. Tex. Dec. 15, 2022).Furthermore, to date, Plaintiff's attempts to challenge his conviction through state court appeals and applications for writ of habeas corpus have failed. Castaneda v. State, No. 08-10-00050-CR, 2011 WL 4490960, at *12 (Tex. App.-El Paso Sept. 28, 2011, pet. ref'd) (affirming conviction); Castaneda v. State, PDR No. 1567-11 (Tex. Crim. App. 2012) (denying petition for discretionary review); see Case Events, Tex. Jud. Branch, https://search.txcourts.gov/Case.aspx?cn=WR-80,285-01&coa=coscca (Search for No. WR- 80,285-01) (last visited March 6, 2023) (noting that Plaintiff's first state petition for writ of habeas corpus was denied); Case Events, Tex. Jud. Branch https://search.txcourts.gov/Case.aspx?cn=WR-80,285-02&coa=coscca (Search for No. WR-80,285-02) (noting that Plaintiff's second state petition for writ of habeas corpus was dismissed). Thus, Plaintiff's Complaint and this Court's own research do not show that Plaintiff's 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, 512 U.S. at 486-87.
“A court may . . . take judicial notice of its own records ....” ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. 1981).
Courts may take judicial notice of a state court's docket, including any “ultimate disposition[s] rendered.” McCalley v. Methodist Southlake Hosp., 4:21-cv-478-SDJ-KPJ, 2022 WL 893548, at *1 n.1 (E.D. Tex. Feb. 22, 2022) (citing Stiel v. Heritage Numismatic Auctions, Inc., 816 Fed.Appx. 888, 892 (5th Cir. 2020) (per curiam)), report and recommendation adopted, 2022 WL 889939 (E.D. Tex. Mar. 25, 2022).
Accordingly, Plaintiff's Fourth, Fifth, Sixth, and Fourteenth Amendment claims are Heck-barred, and the Court recommends that they be dismissed as legally frivolous.
Because Plaintiff does not identify the factual allegations attendant to his Ninth Amendment claim, the Court considers it separately. Moreover, because the Court recommends a finding that the claim is frivolous on other grounds, it need not consider whether it is also Heck-barred.
Plaintiff also asserts a Ninth Amendment claim against Defendants.This claim is also legally frivolous, as “[t]he Ninth Amendment does not specify any rights of the people and is not a vehicle for bringing civil rights claims.” Mitchell v. Town of Lake Arthur, No. 1:16-cv-0064, 2016 WL 2726561, at *2 (W.D. La. May 9, 2016); see also Richardson v. Sewerage & Water Bd., No. 95-cv-3033, 1996 WL 288275, at *2 (E.D. La. May 30, 1996) (holding that civil rights claims are not cognizable under the Ninth Amendment). Accordingly, the Court recommends that the claim be dismissed.
The Ninth Amendment to the United States Constitution provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Court also considers Plaintiff's Eighth Amendment claim separately because he does not identify any factual allegations to support it.
Plaintiff also contends that he has suffered “cruel and unusual punishment” under the Eighth Amendment. The Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made criminal and punished . . . .” Ingraham v. Wright, 430 U.S. 651, 667 (1977).
The last limitation, which the Supreme Court has cautioned is “one to be applied sparingly,” Ingraham, 430 U.S. at 667, generally prohibits the criminalization of an accused's status, as opposed to their actions. See Powell v. Texas, 392 U.S. 514, 533 (1968); see generally Robinson v. California, 370 U.S. 660 (1962).
Plaintiff makes no allegations that would relate to a cognizable Eighth Amendment claim; his allegations relate to the validity of his conviction, not the propriety of the punishment he has faced. Furthermore, he has not alleged that he was prosecuted because of status, as opposed to his conduct. Accordingly, the Court finds that his Eighth Amendment claim fails the 12(b)(6) standard and recommends that it be dismissed.
D. Prejudice
The Fifth Circuit has instructed that “[a] preferred order of dismissal in Heck cases decrees, ‘Plaintiff['s] claims are dismissed with prejudice to their being asserted again until the Heck conditions are met.'” Welsh v. Correct Care Recovery Sols., 845 Fed.Appx. 311, 316 (5th Cir. 2021) (quoting Deleon v. City of Corpus Christi, 488 F.3d 649, 657 (5th Cir. 2007)). Accordingly, the Court recommends that Plaintiff's Heck-barred claims be dismissed in this manner.
In addition, because the Court recommends that Plaintiff's Ninth Amendment claim be dismissed as legally frivolous, the Court recommends that it be dismissed with prejudice. See Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993) (“[C]laims which otherwise clearly have no arguable basis in law . . . usually should be dismissed with prejudice.”); Harris v. Duke, 689 Fed.Appx. 290, 291 (5th Cir. 2017) (reversing district court decision to dismiss legally frivolous claims without prejudice (citing Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc))).
Finally, because the Court recommends dismissing Plaintiff's Eighth Amendment claim for failure to include sufficient factual allegations under the Rule 12(b)(6) standard, the Court recommends that the claim be dismissed without prejudice. See Bazrowx v. Scott, 136 F.3d 1053, 1054-55 (5th Cir. 1998) (noting that “[g]enerally a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend” and affirming the lower's court's dismissal “without prejudice” despite its failure to give the plaintiff an opportunity amend).
III. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that:
• Plaintiff's Fourth, Fifth, Sixth, and Fourteenth Amendment claims be DISMISSED WITH PREJUDICE to their being asserted again until the Heck conditions are met;
• Plaintiff's Ninth Amendment claim be dismissed WITH PREJUDICE;
• Plaintiff's Eighth Amendment claim be dismissed WITHOUT PREJUDICE; and
• That dismissal of this action count as a “strike” for purposes of 28 U.S.C. § 1915(g), and that the Clerk of Court be INSTRUCTED to e-mail a copy of
this order and judgment to the TDCJ - Office of the General Counsel and the keeper of the three-strikes list.
NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THE FOREGOING REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.