Opinion
No. 3:02-CV-0976-D
April 23, 2003
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 are as follows:
I. BACKGROUND
Plaintiff is an inmate in the Texas prison system who initially sued the Fifth Circuit Court of Appeals and judges of that court in April 2002. (First Am. Pleading, doc. 1.). In November 2002, he filed an "Amended Pleading with Attached Exhibit." (Am. Pleading, doc. 8, hereinafter referred to as Am. Compl.) Plaintiff claims that defendants wrongly denied him leave to file a second or successive habeas petition in this Court. ( Id. at 2-8) He further alleges that defendants routinely deny such leave to indigent African-American prisoners, that defendants have abused their power by discriminating against him because of his race, and that defendants have deprived him of due process of law by discriminating against him. ( Id. at 1-2, 8-9.) He asserts that defendants have obstructed justice by preventing him from presenting his constitutional claim. ( Id..) Finally, Plaintiff claims that because he can neither appeal nor seek en banc consideration of the order denying him leave to file a second or successive habeas petition, he has "no other redress." ( Id..) He therefore seeks a determination as to whether defendants abused their power, whether 28 U.S.C. § 2244 (b)(3)(D) grants the circuit adequate time to review the record, and whether § 2244(b)(3)(E) is unconstitutional. ( Id..) No process has been issued in this case.
It is unclear as to whether plaintiff intends to sue any Fifth Circuit judges. The initial pleading filed in this action merely identifies the Fifth Circuit as a defendant, although he also identified in the body of the pleading Judges Garwood, Smith, and Dennis as the Circuit Judges assigned to his case. ( See First Am. Pleading at 3.) His amended pleading adds "et al." to the caption and appears to refer to "the Fifth Circuit", "the justices", and "Justices of the Fifth Circuit" interchangeably as defendants. ( See, generally Am. Pleading.) In an abundance of caution, the Court will construe the instant action as being against the Fifth Circuit and the three judges identified in the initial pleading.
II. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from a governmental entity and its officers or employees, plaintiffs complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiffs complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A (b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is 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. See id.
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.
III. JURISDICTION
Plaintiff seeks relief under 28 U.S.C. § 1331, 2284, 2361. Neither § 2284 nor § 2361 provide a proper jurisdictional basis for this action. Section 2284 provides that a three-judge court "shall be convened when otherwise required by an Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." Plaintiff has provided nothing to indicate that the instant action requires a three-judge court as contemplated by § 2284. Section 2361 provides in pertinent part:
In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court.
Because this action is not of interpleader or of the nature of interpleader, see 28 U.S.C. § 1335, section 2361 likewise provides no proper basis for the instant action.
Petitioner also invokes federal question jurisdiction under 28 U.S.C. § 1331. Section 1331 is a general jurisdictional statute and provides no independent basis for this action. Nevertheless, the Court liberally construes complaints filed by pro se parties. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court held that the violation of a person's constitutional rights by a federal official may give rise to an action for monetary damages in federal court which is brought pursuant to 28 U.S.C. § 1331. Furthermore, the Fifth Circuit Court of Appeals has recognized that a prisoner may request "injunctive relief from violation of his federal constitutional rights." Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (citing Bell v. Hood, 327 U.S. 678, 684 (1946), a case relied upon in Bivens). A Bivens action can seek injunctive or declaratory relief in addition to monetary relief. See Ramsey v. United States, No. CIV.A. 3:96-CV-3358-G, 1997 WL 786252, at *2 n. 2 (N.D. Tex. Dec. 11, 1997). Because plaintiff brings suit against a federal court and its judges, the Court concludes that Bivens provides a proper jurisdictional basis for the instant action.
IV. BIVENS ACTION
Plaintiff alleges that the Fifth Circuit has abused its power by discriminating against indigent African-American litigants and has utilized its power to raise the standard set by 28 U.S.C. § 2244 to an unintended and unprecedented height. (Amended Compl. at 8.) He further alleges that the Fifth Circuit has deprived him of due process by exercising prejudicial standards against him. ( Id. at 9.) He suggests that the Fifth Circuit has obstructed justice by preventing an innocent man his right to present his constitutional claim in a second or successive petition under 28 U.S.C. § 2254. ( Id.) He claims that he has no redress other than this litigation. ( Id.) He thus seeks determinations as to whether defendants abused their power by denying him leave to file a second or successive petition, whether 28 U.S.C. § 2244 (b)(3)(D) grants the circuit adequate time to review the record, and whether § 2244(b)(3)(E) is unconstitutional. ( Id. at 9.)
Unless defendants have deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States, plaintiff has no viable claim under Bivens. See Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (stating that 42 U.S.C. § 1983 provides a federal cause of action and affords redress 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"); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) (recognizing that "[a] Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials"). As will be seen infra, plaintiff has asserted no claim that entitles him to relief under Bivens. A. Claims Against Federal Court
The primary named defendant in this action is the Fifth Circuit Court of Appeals. Plaintiff can obtain no relief under Bivens against a federal court. See EDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (unanimously declining to extend Bivens to permit suit against a federal agency); Moore v. United States Dep't of Agriculture, 55 F.3d 991, 995 (5th Cir. 1995) (recognizing the failure to extend Bivens to permit actions against federal agencies). Because plaintiff can obtain no relief against the Fifth Circuit under Bivens, the claims against this defendant lack an arguable basis in law and are thus legally frivolous. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
B. Claims Against Federal Judges
To the extent that plaintiff also asserts claims against the judges of the Fifth Circuit, these defendants are immune from suit. Thus, Bivens likewise provides no basis for relief against them. See Wightman v. Jones, 809 F. Supp. 474, 476-79 (N.D. Tex. 1992) (holding that federal judges are immune to suit for injunctive and declaratory relief, as well as for monetary damages); Collie v. Kendall, No. CIV.A.3:98-CV-1678-G, 1999 WL 462327, at *3 (N.D. Tex. July 6, 1999) (finding similar Bivens claims "utterly unsupportable" due to immunity issues and imposing sanctions for bringing such claims).
The United States Supreme Court has recognized absolute immunity for judges 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). In an action under Bivens, federal judges are also immune to suit for injunctive and declaratory relief. See Wightman, 809 F. Supp. at 476-79. Allegations of bad faith or malice do not overcome judicial immunity. Mireles, 502 U.S. at 11.
The circuit judges unquestionably have jurisdiction to determine whether a prisoner may file a second or successive habeas petition in the district courts. See 28 U.S.C. § 2244 (b)(3). Such determinations clearly fall within the parameters of judicial functions. Plaintiff alleges no facts that suggest that the judges of the Fifth Circuit acted without jurisdiction. Consequently, the Fifth Circuit Judges are absolutely immune to plaintiffs claims resulting from their judicial acts. The claims against them should therefore be dismissed.
C. Absence of Adequate Redress
Plaintiff claims that, because he can neither appeal nor seek en banc consideration of the order denying him leave to file a second or successive habeas petition, he has "no other redress" other than the instant litigation in which he seeks to determine the constitutionality of 28 U.S.C. § 2244 (b)(3)(E). However, the Supreme Court has already found that § 2244(b)(3)(E) is constitutional and that prisoners such as plaintiff have at least one other avenue to have their petitions heard. See Felker v. Turpin, 518 U.S. 651, 658-64 (1996).
In Felker, the Supreme Court specifically held that the restrictions on filing second or successive habeas petitions "do not amount to a `suspension' of the writ contrary to Article I, § 9 [of the Constitution]." Id. at 664. The Supreme Court also explained that "[s]ection 2244(b)(3)'s `gatekeeping' system for second petitions does not apply to [its] consideration of habeas petitions because it applies to applications `filed in the district court'" not to habeas petitions filed directly with the Supreme Court. Id. at 662. Plaintiff thus needs no approval from any court of appeals before filing an original writ with the Supreme Court for consideration under S.Ct. Rule 20.4(a). Id. Thus, under Felker, the ruling of the Fifth Circuit that denies him authorization to file a second or successive writ in the district court has no impact on his ability to file an original writ directly with the Supreme Court.
V. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS this action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).
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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).