Opinion
No. 3:03-CV-2887-G.
July 22, 2004
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, an inmate in the Texas prison system, brings suit against the District Attorney Office and the District Court of Dallas County pursuant to 42 U.S.C. § 1983. (Compl. at 1-3.) He alleges that defendants have maliciously prosecuted him. ( Id. at 4; Answer to Question 1 of Magistrate Judge's Questionnaire (MJQ).) He seeks monetary damages and the cessation of state criminal proceedings against him. (Compl. at 4.) No process has been issued in this case.
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. ( Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
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, plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiff's 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. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp. 2d 768, 769 (N.D. Tex. 2000).
III. SECTION 1983 RELIEF
Pursuant to 42 U.S.C. § 1983, plaintiff seeks relief for alleged malicious prosecution by defendants. Section 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." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).
Malicious prosecution is a common law tort that protects an individual's "interest in freedom from unjustified litigation." Doe v. State, 2 F.3d 1412, 1420 n. 15 (5th Cir. 1993); Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1188 n. 1 (5th Cir. 1978). The Fifth Circuit has recently clarified that "`malicious prosecution' standing alone is no violation of the United States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under federal and not state law." See Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) ( en banc), cert. filed, No. 03-1269 (Mar. 2, 2004). In other words, there is no "freestanding constitutional right to be free from malicious prosecution." Id. at 945. Thus, plaintiff's allegation of malicious prosecution fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983.
Furthermore, even prior to Castellano, when the Fifth Circuit recognized "a constitutional right under the Fourth Amendment to be free from malicious prosecution," it did so only when "all of its common law elements [we]re established." See Izen v. Catalina, 256 F.3d 324, 327-28 (5th Cir. 2001) (citations and internal quotation marks omitted).
To sustain a malicious prosecution claim, Texas law requires that a plaintiff show "(1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff."Id. at 328 (quoting Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994)). In this instance, the prosecution against plaintiff terminated with his conviction. ( See Answer to Question 4 of MJQ.) Because the criminal action did not terminate in plaintiff's favor, plaintiff cannot succeed on his malicious prosecution claim even under the law as it existed prior to Castellano.