Opinion
NO. 3-03-CV-2219-L
November 17, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought by Plaintiff Roosevelt C. Graves, an inmate in the Dallas County Jail, against his court-appointed lawyer, a state district judge, and the Dallas County District Attorney's Office. On September 29, 2003, plaintiff tendered a pro se complaint to the district clerk and filed an application for leave to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on November 12, 2003. The court now determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
Plaintiff is currently incarcerated in the Dallas County Jail awaiting trial for felony check forgery. On June 3, 2003, plaintiff met with his court-appointed lawyer, Albert L. Galvadon, who advised that the district attorney had not yet filed formal charges against him. Galvadon allegedly told plaintiff that he would file a motion for his release within 72 hours. However, before this motion was filed, plaintiff was indicted by the grand jury. Although his complaint and interrogatory answers are less than a model of clarity, it appears that plaintiff believes that his lawyer, the prosecutor, and the judge have conspired to keep him in jail on a bogus charge. By this suit, petitioner seek monetary damages and immediate release from custody.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d34O (1992).
A civil rights complaint challenging the validity of a state criminal proceeding must be construed as an application for habeas relief under 28 U.S.C. § 2254. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983); Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979). However, a prisoner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). A state prisoner must first present the factual and legal basis of any claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See TEX. R. APP. P. 202(a); TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2003). Otherwise, the federal habeas claim is unexhausted and subject to dismissal. See Bautista v. McCotter, 793 F.2d 109, 100 (5th Cir. 1986); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983).
B.
Plaintiff's claim for monetary damages is without an arguable basis in law. Only "state actors" maybe sued for civil rights violations under 42 U.S.C. § 1983. Plaintiff's court-appointed lawyer, Albert L. Galvadon, is a private attorney who does not act "under color of state law." See Polk County v. Dodson, 454 U.S. 312, 324-25, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). Nor can plaintiff recover monetary damages against the presiding judge. See Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978) (judges have absolute immunity for actions taken within the scope of their jurisdiction). Finally, the Dallas County District Attorney's Office is not a legal entity subject to suit. See Short v. Brauchle, 2003 WL 21448773 at *2 (N.D. Tex. Mar. 25, 2003) (Kaplan, MJ.) (citing cases).
Plaintiff is also precluded from maintaining a federal civil rights action under the rule first announced in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Until a state court or federal habeas court determines that plaintiff's confinement is invalid, he cannot sue for money damages under 42 U.S.C. § 1983. Id., 114 S.Ct. at 2372.
Plaintiff also challenges the fact and duration of his confinement. The complaint must therefore be construed as an application for writ of habeas corpus. Jackson, 720 F.2d at 879; Johnson, 601 F.2d at 174. In response to a Spears questionnaire, plaintiff admits that he has not challenged his continued detention in a state writ. ( Spears Quest. #4). As a result, plaintiff has not exhausted his state remedies.
RECOMMENDATION
Plaintiff's civil rights complaint should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2). The remaining portion of the complaint should be construed as an application for writ of habeas corpus and dismissed for failure to exhaust state remedies.