Opinion
No. 3:20-cv-705-K-BN
03-27-2020
TERRANCE EMERSON (TDCJ No. 2189126), Plaintiff, v. LYNN PRIDE RICHARDSON, ET AL., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Terrance Emerson, a Texas prisoner, convicted of seven drug-related offenses in Dallas County in 2018, brings this pro se action under 42 U.S.C. § 1983, alleging claims related to the underlying criminal proceedings, naming as defendants the Dallas County Public Defender's Office, his criminal defense attorney, the Dallas County District Attorney's Office, and an employee of a state criminal district court. See Dkt. No. 2. His case was referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Ed Kinkeade. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss Emerson's claims as either barred by immunities or currently barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Legal Standards and Analysis
Where a prisoner - whether he is incarcerated or detained prior to trial - seeks relief from a governmental entity or employee, a district court must, on initial screening, identify cognizable claims or dismiss the complaint, or any portion of the complaint, that "is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The language of this statute - as well as its sister statute, Section 1915(e)(2)(B) - "tracks the language of Federal Rule of Civil Procedure 12(b)(6)." Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam).
And dismissal for failure to state a claim under either Section 1915(e)(2)(B)(ii) or Rule 12(b)(6) "turns on the sufficiency of the 'factual allegations' in the complaint," Smith v. Bank of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)), as neither the IFP statute nor the Federal Rules of Civil Procedure "countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted," Johnson, 574 U.S. at 11.
Instead, plaintiffs need only "plead facts sufficient to show" that the claims they assert have "substantive plausibility" by stating "simply, concisely, and directly events" that they contends entitle them to relief. Id. at 12 (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "A claim for relief is implausible on its face when 'the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'" Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, a plaintiff must allege more than labels and conclusions, and, while a court must accept all of a plaintiff's allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). And a threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id.
This rationale has even more force here, as the Court "must construe the pleadings of pro se litigants liberally," Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006), "to prevent the loss of rights due to inartful expression," Marshall v. Eadison, 704CV123HL, 2005 WL 3132352, at *2 (M.D. Ga. Nov. 22, 2005) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980)); but see Smith v. CVS Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013) ("[L]iberal construction does not require that the Court ... create causes of action where there are none.").
"Ordinarily, 'a pro se litigant should be offered an opportunity to amend his complaint before it is dismissed.'" Wiggins v. La. State Univ. - Health Care Servs. Div., 710 F. App'x 625, 627 (5th Cir. 2017) (per curiam) (quoting Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009)). But leave to amend is not required where an amendment would be futile, i.e., "an amended complaint would still 'fail to survive a Rule 12(b)(6) motion.'" Stem v. Gomez, 813 F.3d 205, 215-16 (5th Cir. 2016) (quoting Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014)).
Taking first Emerson's claims against a state court employee, judges generally have absolute immunity for judicial actions taken within the scope of their jurisdiction, which also means that judicial officers are generally immune from suits for money damages. See Stump v. Sparkman, 435 U.S. 349, 356 (1978); Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Davis v. Tarrant Cnty, Tex., 565 F.3d 214, 221-22 (5th Cir. 2009).
"Judicial immunity can be overcome only by showing that the actions complained of were nonjudicial in nature or by showing that the actions were taken in the complete absence of all jurisdiction." Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). "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." Id. at 285 (internal quotation marks omitted). "[J]udicial immunity is not overcome by allegations of bad faith or malice," Mireles, 502 U.S. at 11; see Boyd, 31 F.3d at 284 ("The alleged magnitude of the judge's errors or the mendacity of his acts is irrelevant." (citing Young v. Biggers, 938 F.2d 565, 569 n.5 (5th Cir. 1991))). And "[d]isagreeing with a judge's actions does not justify depriving that judge of his or her immunity," Greenlee v. U.S. Dist. Court, No. 09-2243-cv-FJG, 2009 WL 1424514, at *2 (D. Kan. May 21, 2009) (citing Stump, 435 U.S. at 363).
This immunity extends to court employees. Such employees "have absolute immunity from actions for damages arising from acts they are specifically required to do under court order or at a judge's discretion." Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001) (quoting Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. June 1981)). Thus, to the extent that Emerson brings claims against a court employee, because he has not plausibly alleged that the employee "acted outside of judicial instructions, those claims should also be dismissed with prejudice." Devabhaktuni v. Godbey, No. 3:19-cv-2215-K-BN, 2019 WL 5069066, at *2 (N.D. Tex. Sept. 17, 2019), rec. accepted, 2019 WL 5068557 (N.D. Tex. Oct. 8, 2019).
Construing his claims as against the Dallas County District Attorney, to the extent that the District Attorney's Office is not a jural entity, it is apparent that Emerson's claims against this defendant stem from his belief that the D.A. harmed him through actions taken in the scope of prosecuting him. But state prosecutors are absolutely immune from a suit for damages for actions taken within the scope of their duties as prosecutors. See Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976); see also Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 634 n.2 (5th Cir. 2000) ("As to prosecutors, entitlement [to immunity] flows from performance of activities that are intimately associated with the judicial process, such as initiating and prosecuting a criminal case." (citing Imbler, 424 U.S. at 430)).
A plaintiff "may overcome a defendant's prosecutorial immunity by alleging actions that fall outside 'initiating the prosecution and in carrying the case through the judicial process.'" DeLeon v. City of Dallas, No. 3:02-cv-1097-K, 2003 WL 22244773, at *1 (N.D. Tex. Sept. 16, 2003) (quoting Boyd, 31 F.3d at 285), reversed in part on other grounds, 141 F. App'x 258 (5th Cir. 2005).
Prosecutorial immunity, however, applies even if the prosecutor is
accused of knowingly using perjured testimony, withholding exculpatory evidence, and failing to make full disclosures of facts. State prosecutors are absolutely immune for their actions intimately associated with the judicial process, including their actions in seeking the issuance of an arrest warrant.Id. (citations and quotation marks omitted); see Bibb v. Montgomery Cnty. Sheriff, Civ. A. No. H-13-3736, 2014 WL 3828232, at *8 (S.D. Tex. July 30, 2014) ("[A] prosecutor is entitled to absolute immunity for his action in commencing a prosecution and all actions during the course and scope of the prosecution, even against charges that he acted 'maliciously, wantonly, or negligently.'" (quoting Imbler, 424 U.S. at 430-31)).
Because Emerson alleges no specific facts to show that the D.A. acted outside of the scope of a criminal prosecution, Emerson has not overcome the absolute immunity that attaches to prosecutors acting within their jurisdiction. And his claims against this defendant should be dismissed with prejudice.
As to Emerson's claims against his own defense counsel and the Dallas County Public Defender (assuming he has named a jural entity), defense attorneys, whether public defenders or private attorneys, are not "state actors" and cannot be sued under Section 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981) ("[A] 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 proceeding"); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) ("[P]rivate attorneys, even court-appointed attorneys, are not official state actors, and generally are not subject to suit under section 1983."); cf. Sellers v. Haney, 639 F. App'x 276, 277 (5th Cir. 2016) (per curiam) ("The district court properly concluded that Sellers's defense attorneys were not state actors." (citing Dodson, 454 U.S. at 317-18)). And Emerson alleges no plausible facts to show that any defense counsel conspired with state actors to deprive him of constitutional rights. See Mills, 837 F.2d at 679.
Finally, to the extent that Emerson requests damages related to a Sixth Amendment claim of ineffective assistance of counsel, civil rights claims based on "factual allegations [that] are necessarily inconsistent with the validity of [a] conviction" that has not been reversed on direct appeal, expunged by executive order, or otherwise declared invalid by a state tribunal or federal court should be dismissed as frivolous. McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (cited in Bush v. Strain, 513 F.3d 492, 498 n.14 (5th Cir. 2008)); see Heck, 512 U.S. at 486-87; Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." (citation omitted)); see also DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 (5th Cir. 2007) ("The Heck court held that a civil tort action, including an action under section 1983, is not an appropriate vehicle for challenging the validity of outstanding criminal judgments." (citing Heck, 512 U.S. at 486)); id. at 654 (in this circuit, "Heck stands first for 'the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments'" (quoting Heck, 512 U.S. at 486)).
Because Emerson fails to show that his convictions have been reversed, expunged, or otherwise declared invalid, cf., e.g., Ex parte Emerson, WR-90,297-08 (Tex. Crim. App. Dec. 11, 2019); Ex parte Emerson, WR-90,297-09, -10, -11, -12, -13, & -14 (Tex. Crim. App. Dec. 13, 2019) (denying each state habeas application without written order), a civil claim based on a theory that his criminal trial counsel was constitutionally ineffective is currently barred by Heck, see, e.g., Mount v. Wakefield, 738 F. App'x 280, 280-81 (5th Cir. 2018) (per curiam) (affirming dismissal of Section 1983 claim based on alleged violation of the Sixth Amendment right to effective assistance of counsel as barred by Heck).
For all the reasons stated above, an amended complaint based on the facts underlying the current allegations would not survive a legal challenge under Rule 12(b)(6). Put differently, no set of facts could show that the claims Emerson asserts currently have "substantive plausibility." Johnson, 574 U.S. at 12. But, if Emerson disagrees, the time period for filing objections to these findings, conclusions, and recommendation offer him an opportunity to make his case for amendment.
Recommendation
The Court should dismiss this action with prejudice for the reasons and to the extent explained above.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: March 27, 2020
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE