Opinion
1:23-CV-1069-RP
11-28-2023
PURNELL WILLIAMS, ANGELA WILLIAMS, Plaintiff v. CHRISTOPHER SHORT, IN HIS INDIVIDUAL CAPACITY, Defendant
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE
The undersigned submits this report and recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiffs Purnell Williams and Angela Williams's Application to Proceed In Forma Pauperis. Dkt. 2. Because Plaintiffs are requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of their claims pursuant to 28 U.S.C. § 1915(e).
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Plaintiffs' financial affidavit and determined Plaintiffs are indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Plaintiffs' request for in forma pauperis status, Dkt. 2. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination that the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Plaintiffs are further advised that, although they have been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this complaint and is recommending that all of Plaintiffs' claims be dismissed with prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the District Court's review of the recommendations made in this report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. REVIEW OF THE MERITS OF THE CLAIMS
Because Plaintiffs have been granted leave to proceed in forma pauperis, the undersigned is required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that “the court shall dismiss the case at any time if the court determines that ... 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.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327.
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Plaintiffs sue Travis County Sheriffs Office (“TCSO”) Detective Christopher Short in his individual capacity for abuse of office/official capacity, violation of Detective Short's oath of office, and common law fraud. Dkt. 1, at 1. Plaintiffs also bring 42 U.S.C. § 1983 claims for infringement of their due process rights under the Fourteenth Amendment to the U.S. Constitution. as well as their rights against unlawful search and seizure under the Fourth Amendment. Id.
A. Factual Background
Plaintiffs allege Detective Short “did knowingly and with malicious intent” violate their rights when he drafted a “fraudulent affidavit” in support of an arrest warrant for Mr. Williams. Id. Plaintiffs previously filed another case arising from the same set of facts. See Case No. 1:23-cv-0496, Dkt. 1 (hereinafter referred to as “the first case”). The Complaint in the first case is incorporated by reference in the Complaint presently before the Court. See Dkt. 1, at 1 (stating “Purnell and Angela Williams [file] this complaint in conjunction with Civil Action number 1:23 CV-0496-RP”); id. at 4 (stating “[i]f the court deems it necessary the Plaintiffs will re-file all affidavits and exhibits previously filed in case no. 1:23-cv-0496 to further support all claims stated herein.”).
The arrest warrant at issue in both cases arose from a domestic dispute at Plaintiffs' home. Case No. 1:23-cv-0496, Dkt. 5 at 4. Allegedly, Plaintiffs, who are married, argued while Mrs. Williams was intoxicated. Id. Mr. Williams was reported to have grabbed Mrs. Williams and pressed her face to the ground while verbally threatening her. Id. Mr. Williams disputes this account and claims that he was merely physically restraining Mrs. Williams from attacking him. Id.
Plaintiffs claim Mrs. Williams informed officers on the scene that she did not want to pursue assault charges against Mr. Williams. Id. at 5. However, an arrest warrant was later issued for Mr. Williams supported by an affidavit authored by Detective Short. Id. After the police were called to Plaintiffs' home following another domestic dispute, the arrest warrant was executed, and Mr. Williams was arrested and held for 36 hours, and a protective order was put into place. Id. at 8. According to the Complaint in the case presently before the Court (referred to here as “the second case”), the charge against Mr. Williams for assault was dismissed for No Probable Cause and Lack of Evidence on July 13, 2023. Dkt. 1, at 7.
Plaintiffs' Complaint in the first case states that the affidavit written by Detective Short in pursuit of the warrant “erroneously and fraudulently described secondhand information and falsified the occurrence of events to obtain a warrant for arrest for Mr. Williams,” placing Mr. Williams in “false light.” Case No. 1:23-cv-0496, Dk. 5, at 6. Plaintiffs contend by stating “[Mrs. Williams] had visible injuries,” the affidavit casts Mrs. Williams as a “victim” and Mr. Williams as the aggressor. Id. Plaintiffs do not deny that Mrs. Williams had visible injuries, but instead argue that “Mrs. Williams informed the officers on the scene and [Detective Short] that her husband did not commit any of her injuries.” Id. Further, Plaintiffs state the affidavit creates the impression that Mr. Williams “has some sort of power or control over Mrs. Williams” even though Mrs. Williams never stated that she was fearful of Mr. Williams. Id. Plaintiffs' Complaint in the second case states that Detective Short “has provided no defense against the allegations” and “cannot because he cannot produce a statement from an injured party.” Dkt. 5, at 2.
B. Procedural Background
Plaintiffs' first case brought claims for abuse of office, violation of oath of office, frauds and swindles, false and fictitious statements, racketeering, defamation, and § 1983 claims for violation of the Fourth Amendment's prohibition on unlawful search and seizure and the Fourteenth Amendment's due process protections. Case No. 1:23-cv-00496, Dkt. 5, at 1. These claims were made against TCSO; TCSO Detective Short; Judge Patrick McNelis, who signed the arrest warrant; the Austin Municipal Court where Judge McNelis sits; the Travis County District Attorney's Office; and Assistant District Attorney Elizabeth Whited. Id.
Plaintiffs filed an Application to Proceed In Forma Pauperis, which was referred to the undersigned for disposition. After determining that Plaintiffs are indigent, the undersigned reviewed the Complaint and made a recommendation on the merits of Plaintiffs' claims pursuant to 28 U.S.C. § 1915(e). Case No. 1:23-cv-00496, Dkt 16, at 2. Based on the undersigned's Report and Recommendation, the District Court dismissed with prejudice Plaintiffs' claims against TCSO, Judge McNelis, the Austin Municipal Court, the Travis County DA's Office, and ADA Whited. Case No. 1:23-cv-00496, Dkt. 23, at 1-2. The District Court also dismissed with prejudice Plaintiffs' claims under the False Claims Act, for frauds and swindles, for racketeering, for abuse of office, and claims related to Defendants' oaths of office. Id. The remaining official capacity claims against Detective Short were also dismissed with prejudice. Id. at 2. As to the remaining individual capacity claims against Detective Short, the District Court dismissed Plaintiffs' defamation claim with prejudice and dismissed Plaintiffs' § 1983 claims without prejudice. Id. The District Court entered final judgment to that effect. See Case No. 1:23-cv-00496, Dkt. 24.
Plaintiffs now reassert their oath of office claim, abuse of office claim, § 1983 claims, and assert a new common law fraud claim. Dkt. 1, at 1. In sum, Plaintiffs allege Detective Short violated his oath of office and committed abuse of office “by the constructing of a fraudulent affidavit” which effectively subjected the Williamses to “mistreatment, or unlawful arrest, search, [and] seizure.” Id. at 2. Plaintiffs also state that Detective Short is “liable for (5) five out of the (9) elements” of common law fraud because he “represented a false narrative as fact”; “knew he was drafting a false affidavit based on hearsay”; “did not have material evidence”; and painted Mrs. Williams as a victim even though she allegedly stated “she was the one committing the assault and [...] was not interested in pressing charges against her husband.” Id. at 4. As to the constitutional violations, Plaintiffs claim Mr. Williams's Fourteenth Amendment due process rights and Fourth Amendment rights against unlawful search and seizure were violated by “falsely imprisoning [Mr. Williams's] living being under a fictional character identity in [Detective Short's] affidavit.” Id.
C. Analysis
1. Oath of Office and Abuse of Office Claims
The oath of office and abuse of office/official capacity claims asserted in the instant suit are identical to those asserted in the first case. These claims should be dismissed with prejudice.
a. Oath of Office claim
In the first case's Complaint Plaintiffs asserted their oath of office claim under 28 U.S.C. § 3331. Case No. 1:23-cv-00496, Dkt. 5, at 1. As the undersigned noted in his Report and Recommendation, “[presumably Plaintiffs intended to cite 5 U.S.C § 3331 for their claims related to Defendants' oath of office because 28 U.S.C § 3331 does not exist.” Case No. 1:23-cv-00496, Dkt. 16, at 14. The undersigned recommended dismissal with prejudice of the 5 U.S.C § 3331 oath of office claim because that statute governs the administration and conduct of the U.S. Federal Government and its employees. Id. at 15. Therefore, it is inapplicable to “Plaintiffs' claims arising from the conduct of Texas state and Travis county employees.” Id. Accordingly, undersigned determined that Plaintiffs' oath of office claim “lacks an arguable basis in law and fact, is frivolous, and should be dismissed.” Id.
Here, Plaintiffs' assert an oath of office claim under 33 U.S.C § 3331, which also does not exist. Dkt. 1, at 1. To the extent Plaintiffs' oath of office claim was intended to be brought pursuant to 5 U.S.C. § 3331, the claim should be dismissed with prejudice for the same reasons the undersigned recommended dismissal with prejudice of the claim once before. Namely, the claim is frivolous under § 1915(e)(2)(B) as it lacks an arguable basis in law under the statute asserted.
As relevant here, where Plaintiffs have reasserted claims that were previously dismissed with prejudice, Plaintiffs should be advised that dismissal with prejudice “at any stage in a judicial proceeding normally constitutes a final judgment on the merits” that acts as a bar to refiling the same claim. See Kaspar Wire Works, Inc. v. Leco Engineering & Mach, Inc., 575 F.2d 530, 534 (5th Cir. 1978).
b. Abuse of Office/Official Capacity claim
Plaintiffs next assert an abuse of official capacity claim arguing that “[i]n the State of Texas a public servant is guilty of Abuse of Office if he or she intentionally subjects someone to mistreatment, or unlawful arrest, search, seizure, dispossession, assessment or lien. A public servant is also guilty if he or she intentionally impedes someone from exercising or enjoying a right, privilege, power, or immunity.” Dkt. 1, at 2. In the first case filed by Plaintiffs they alleged that, in violation of 25 C.F.R. § 11.448, “Defendants have grossly abused the powers of their offices ... [because they have] utilized their offices to extract the freedom and liberty of the Plaintiffs without Due Process [and have interfered] with Plaintiffs' lives and have basically turned their world upside down.” Case No. 1:23-cv-00496, Dkt. 5, at 11-12. As noted in the undersigned's Report and Recommendation in the first case, 25 C.F.R. codifies the federal laws and regulations pertaining to American Indians and is inapplicable to Plaintiffs' allegations concerning state and county employees' conduct related to an allegedly falsified probable cause affidavit. Case No. 1:23-cv-00496, Dkt. 16, at 15-16. Therefore, Plaintiffs' oath of office claim asserted in the first case lacked an arguable basis in law and fact, was frivolous, and was dismissed with prejudice. Id. at 16.
In the Complaint presently before the Court, Plaintiffs do not explicitly state the law governing their abuse of office claim but vaguely claim Detective Short is liable “in the State of Texas” for abuse of official capacity. Dkt. 1, at 2. Abuse of official capacity is a criminal violation under the Texas Penal Code. See Tex. Pen. Code § 39.02. However, the Texas Penal Code does not create a private cause of action through which Plaintiffs may bring their abuse of official capacity claim. Elizondo v. Nueces Cnty., Tex., No. CC-07-405, 2008 WL 383809, at *3 (S.D. Tex. Feb. 8, 2008) (citing Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.-Tyler 1996, pet. denied)). Only a local county or district attorney or attorney general can prosecute an offense under the abuse of official capacity statute. See Tex. Pen. Code § 39.015. Since there is no private cause of action through which Plaintiffs can bring their abuse of official capacity claim, the claim lacks an arguable basis in law, is frivolous, and should be dismissed with prejudice.
2. Common Law Fraud claim
Plaintiffs allege that Detective Short is “liable for (5) five out of the (9) elements” of common law fraud. Dkt. 1, at 2. Plaintiffs argue that Detective Short made a representation of fact in his affidavit with knowledge of its falsity and materiality and allege that they suffered consequent and proximate injury. Id.
To state a claim for common law fraud, Plaintiffs must allege that: (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018); Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).
Plaintiffs do not plead that Detective Short intended to induce Plaintiffs to act upon the allegedly fraudulent representations in the affidavit, nor do they allege that they actually and justifiably relied upon the representations. Therefore, Plaintiffs have alleged insufficient facts to establish a colorable claim for common law fraud. Plaintiffs' claim for common law fraud should be dismissed with prejudice as factually frivolous. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). “[A] court may dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless,' a category encompassing allegations that are ‘fanciful,' ‘fantastic,' and ‘delusional.'” Flowers v. Sutterfield, No. 20-10988, 2022 WL 2821953, at *2 (5th Cir. July 20, 2022), cert. denied, 143 S.Ct. 1057 (2023).
3. § 1983 Claims
Pursuant to 42 U.S.C. § 1983, Plaintiffs allege that their rights against unlawful search and seizure guaranteed by Fourth Amendment and the right to due process under the Fourteenth Amendment were violated. Dkt. 1, at 1. Plaintiffs' § 1983 claims in this case are identical to the claims previously made in the first case. As in the prior Complaint, Plaintiffs blend a Fourteenth Amendment due process rights violation claim with a Fourth Amendment unlawful search and seizure claim. See Dkt. 1, at 4 (“At the inception of Defendant Short's actions he violated Due Process of Law and by his fraudulent affidavit he unlawfully had the living individual person seized in clear violation of Due Process of Law and in his seizure he violated Mr. Williams's 4th Amendment right by falsely imprisoning his living being under a fictional character's identity in his affidavit.”); see also Case No. 1-23-cv-496. Dkt. 5, at 5 (alleging that Detective Short deprived Mr. Williams of his due process rights by filing a false probable cause affidavit in support of an arrest warrant for Mr. Williams in violation of the Fourth Amendment's prohibition on unreasonable searches and seizures as incorporated by the Fourteenth Amendment).
Regarding the § 1983 claims in the first case, the undersigned recommended dismissal without prejudice. Case No. 1:34-cv-00496, Dkt. 16, at 19, 21. The undersigned determined that, given Plaintiffs' concessions concerning Mr. Williams's restraint of Mrs. Williams, and the existence of her injuries, Plaintiffs did not plead facts demonstrating Detective Short knowingly and intentionally made false statements in his affidavit as required by Franks v. Delaware, 438 U.S. 154 (1978). Case No. 1:34-cv-00496, Dkt. 16, at 19, 21. The undersigned also found that Plaintiffs failed to plead that the allegedly false statements made by Detective Short were necessary to a finding of probable cause and did not dispute the operative representations that were the crux of the probable cause finding related to the charge of assault causing bodily injury of a family member. Id. As a result, Plaintiffs did not state facts alleging a violation of their clearly established Fourth Amendment right against unlawful search and seizure, so their § 1983 claims were determined to have no basis in law or fact. Id. at 21-22.
In this case Plaintiffs have not pleaded any additional facts that might help rehabilitate their § 1983 claims. Specifically, in relying on the Complaint in the first case, Plaintiffs' new Complaint does not plead additional facts concerning whether Detective Short knowingly and intentionally made false statements, nor whether those false statements were necessary to a finding of probable cause. While the Complaint in this case incorporates Plaintiffs' objections to the Report and Recommendation in the first case, the claims about the affidavit contained within the objections fail to move the needle for two reasons. See Dkt. 1, at 1-2 (“The Plaintiffs meticulously examined and dissected Defendant Short's Affidavit for Arrest for Assault Family Violence against Mr. Williams in its rebuttal to [the Report and Recommendation] . . . and outlined each deficiency and misrepresentation invoked by Defendant Short as facts.”).
First, the District Court overruled Plaintiffs' objections and adopted the Report and Recommendation as its own order. See Case No. 1:23-cv-00496, Dkt. 23, at 1. Second, the objections simply rehash the same issues raised in the Complaint in the first case. For example, Plaintiffs contest Detective Short's description of Mrs. Williams as a “victim”; state that Mr. Williams was not responsible for Mrs. Williams' injuries and that he “only restrained her”; and, again, claim that Plaintiffs did not wish to pursue the matter further and have charges pressed against Mr. Williams. Case No. 1:23-cv-00496, Dkt. 20, at 4. Plaintiffs' objections also state that the affidavit represents that Mr. Williams held his wife's face to the floor when in fact, he “pull[ed] her dreadlocked hair only to prevent her from biting his arms while she was in his grasp and utilized his body weight to neutralize Mrs. Williams from attacking him and causing further harm and told Mrs. Williams through a ‘clenched teeth' manner, as to NOT arouse his neighbors, to stop resisting and did refer to her with an expletive.” Id. at 5. Plaintiffs also take issue with Detective Short's “highlighting] of the physical description” of Mr. and Mrs. Williams. Id. at 7. They argue that noting Mr. Williams's “larger size gives the impression that he was the aggressor in the altercation taking advantage of his wife's physical disposition compared to his.” Id. at 6. None of these critiques and explanations change the undersigned's analysis as to whether Plaintiffs have sufficiently pleaded that Detective Short knowingly and intentionally made false statements that were necessary to a finding of probable cause.
Accordingly, the undersigned finds that the facts as pleaded in this case and the corresponding § 1983 claims are duplicative of those in the first case. Therefore, these claims are malicious and should be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) concerning dismissal of a case once the court determines the action is malicious. See Brown v. Tex. Bd. of Nursing, 554 Fed.Appx. 268, 269 (5th Cir. 2014) (per curiam) (affirming dismissal of complaint as duplicative and thus malicious because even if it raised new claims, the claims stemmed from the same event challenged in prior state and federal cases); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (“[I]t is ‘malicious' for a pauper to file a lawsuit that duplicates allegations of another pending federal lawsuit by the same plaintiff'); see also Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019) (“[A] claim qualifies as malicious if it is virtually identical to and based on the same series of events as a claim previously brought by the plaintiff.”)
4. Filing Warning
A review of the Western District's electronic filing system reveals that Plaintiff Purnell Williams has filed at least three prior cases that have been dismissed as frivolous and at least one prior case that was dismissed because Williams failed to respond to Defendants' motion to dismiss and failed to plead adequate facts.
See Case No. A-12-cv-0717-LY, dismissed with prejudice as frivolous; Case No. 1:17-cv-00913, dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2); Case No. 1:22-CV-692, dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2) because the complaint lacked an arguable basis in law; Case No. 1-16-cv-1302; 1-16-cv-1302-LY, motion to dismiss granted as unopposed and because Williams's complaint failed to plead adequate facts.
Based on Williams's filing history as well as his malicious filing in the instant case, the undersigned recommends that the District Court include within its judgment a provision expressly and specifically warning Plaintiffs that filing or pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant monetary sanctions pursuant to Fed.R.Civ.P. 11; (c) the imposition of an order barring Plaintiff from filing any lawsuits in this Court without first obtaining the permission from a District Judge of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some combination of these sanctions.
III. ORDER AND RECOMMENDATION
The undersigned hereby GRANTS Plaintiffs' Application to Proceed In Forma Pauperis, Dkt. 2.
The undersigned RECOMMENDS that Plaintiffs' oath of office, abuse of office/official capacity, common law fraud, and § 1983 claims related to Plaintiffs' Fourth and Fourteenth Amendment rights against Detective Short be DISMISSSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e).
IT IS FURTHER RECOMMENDED that the District Court a warning to Plaintiffs concerning the further filing of frivolous lawsuits.
IT IS ORDERED that the Clerk of the Court shall withhold service pending the District Court's review of the recommendations made in this report.
The referral of this case to the undersigned should now be CANCELED.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Common, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Assn, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).