Opinion
2:01-CV-0175
April 22, 2002
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff LANDIS CHARLES BARROW, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, Telford Unit, originally filed the instant suit in the 320th Judicial District Court of Potter County, Texas, pursuant to Title 42, United States Code, section 1983, 1985, and 1986 complaining against a total of twenty-six defendants; however, defendants KING, COLE, BOYDSTON, STRADLEY, VILLASENOR, WATKINS, LAWRENCE, and POTTER COUNTY, TEXAS (the POTTER COUNTY DEFENDANTS) promptly filed notice of removal to the United States District Court for the Northern District of Texas, Amarillo Division. The remaining defendants have not been served or made an appearance in this cause. Subsequent to removal, and upon plaintiffs motion, plaintiff was granted permission to proceed in forma pauperis pursuant to Title 28, United States Code, section 1915(b).
On March 29, 2002, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiffs claims under Title 28, United States Code, sections 1915A and 1915(e)(2), and recommending dismissal with prejudice as frivolous and for failure to state a claim on which relief can be granted.
Plaintiff filed his Objections on April 15, 2002, recasting his allegations in response to the Report and Recommendation.
At the time of the events giving rise to plaintiffs claims, plaintiff had received 10 years "deferred probation" for aggravated robbery. Based upon plaintiffs pleadings in this cause the following timeline of events has been culled. Unless otherwise noted, the source of the date and factual allegation is plaintiffs original complaint.
See, plaintiffs 6-20-01 "Brief Pursuant to the Provisions of Heck v. Humphrey by Court Order" at page 1
12-18-98 date of terroristic threats incident in Dimmit, Texas, of which plaintiff was accused.
1-26-99 arrest of plaintiff and his brothers on arrest warrant for terroristic threats. Plaintiff was taken to Dimmit City Jail, then was transferred to Tulia in *******Swisher County, and "eventually bonded out."
1-28-99 plaintiff reports to defendant Grimes, his probation officer and fails to disclose the arrest "because he knew she would have him violated. . . ." (plaintiffs orig complaint and specificity of date comes from plaintiffs 6-20-01 Brief Pursuant to the Provisions of Heck v. Humphrey by Court Order at page 1).
2-5-99 Grimes files violation report on plaintiff recommending probation revocation.
2-18-99 capias warrant issues for probation revocation, as requested by defendants King and Coyle.
2-25-99 plaintiff taken before Judge Emerson on Motion to Revoke; bond denied.
2-29-99 plaintiffs brother (and co-defendant on terroristic threat charges) tries to get exonerating affidavits from complainants (affidavits attached to plaintiffs April 15, 2002, Objections).
3-99 plaintiff retains attorney Broadfoot who obtains exonerating affidavits but cannot get Motion to Revoke dismissed.
date unknown plaintiff accepts I.S.P. for one year.
See Plaintiffs June 20, 2001, Brief Pursuant to the Provisions of Heck v. Humphrey by Court Order, where plaintiff states: "Plaintiff's Motion to Revoke his probation was dismissed because plaintiff agreed to submit to one year in the Intense Supervision Program, formally known as I.S.P." (In his original complaint, plaintiff refers to I.S.P. as "Intensive Supervision Program.")
5-6-99 Coyle files Motion to Dismiss Motion to Proceed with Adjudication of Guilt on plaintiffs original charge, presumably the aggravated robbery charge.
5-11-99 plaintiff is released from Potter County Jail and placed in I.S.P.
1-13-00 terroristic threat charges are dismissed (plaintiffs 4-15-02 Objections at page 8) and plaintiff is convicted of aggravated robbery (plaintiffs 4-15-02 Objections at page 1).
Plaintiff claims the defendants acted in bad faith and without probable cause by prosecuting or having plaintiff prosecuted on terroristic threats charges, as well as by conducting a probation revocation proceeding against him. Plaintiff alleges the probation revocation proceeding was based on terroristic threats charges which were false and bolstered with fabricated evidence and perjured testimony, and that he was thus coerced into accepting a stricter form of probation, suffering various harms, including to finance and reputation, as a result of his detention and prosecution. Plaintiff alleges the defendants acted in the knowledge that he was innocent of such charges.
Plaintiff has alleged absolutely no fact to support an allegation that any defendant at any time had actual knowledge that he was innocent of the terroristic threat charges. Nevertheless, this allegation helps define plaintiffs claims as malicious prosecution, not abuse of process, as he has alleged no fact(s) to show any extortionate perversion of lawfully initiated process to illegitimate ends but, instead, claims the process was without probable cause from its initiation.
By his Objections, plaintiff presents new facts, some of which appear to contradict statements in plaintiff's original complaint, and plaintiff does not attempt in any way to explain these contradictions. Nevertheless, accepting the facts plaintiff now presents, plaintiff states the dismissal of his terroristic threat charges was completely unrelated to his acceptance of a more restrictive form of probation and was based entirely upon the complainants' affidavits, obtained by plaintiffs counsel, stating plaintiff was not one of the two wrongdoers. Thus, plaintiff contends, Heck considerations do not bar his suit against any of the defendants. If, as plaintiff now states, the dismissal of the terroristic threat charges was not connected in any way with plaintiffs agreement to the Instensive Supervision Program, then Heck may not bar plaintiffs claims against those defendants initiating or prosecuting the terroristic threat charges; however, this does not negate the operation of Heck with respect to plaintiffs claims concerning his probation revocation action. As he now presents them, plaintiffs factual allegations amply demonstrate the legally separate nature of the terroristic threats prosecution and his probation revocation action; and plaintiff has alleged no facts to establish any other kind of connection between them. Instead, it is clear that the terms of plaintiffs probation were violated by his January 26, 1999 arrest on terroristic threats charges and his failure to report such arrest. Plaintiffs own factual allegations show he was aware the arrest would trigger a probation violation report and he informs the Court he therefore failed to tell his probation officer of the arrest when he reported to the probation officer on January 28, 1999. Plaintiffs failure to report the arrest constituted a knowing violation of another standard term of probation. These admitted facts, the arrest and plaintiffs failure to disclose it to his probation officer, provided probable cause sufficient to justify his re-arrest and subsequent detention on the probation revocation action.
Specifically, plaintiff stated defendant CRISWELL eventually dismissed the terroristic threat charges against plaintiff after a motion :o revoke his probation had been filed [see plaintiffs June 20, 2001, "Response to Joint Motion to Dismiss of Defendants' Rebecca King, John Coyle, Jimmy D. Boydston, John Stradley, Manny P. Villasenor, Strickland Watkins, Iris Sanders Lawrence and Potter County, Texas with Supporting Briefing [sic]" at page 9] "but not before plaintiff agreed to an amended form of his probation, to wit: Intensive Supervision Program" [plaintiff original complaint at page 14]. Plaintiff says he "took the plea-bargain for the Intensive Supervision Program because it was better off [sic] than doing a 5-99 year [sic] or even life in prison, even though [the] charges were bogus" [plaintiffs origignal complaint at pages 14-15].
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).
If plaintiff felt he was wrongly coerced by such detention into accepting the modification of his probation or that other error was present, the writ of habeas corpus was available to plaintiff for any challenge he wished to make to any alleged error in the modification.See, Basaldua v. State, 558 S.W.2d 2, 5 (Tex.Crim.App. 1977). Plaintiffs response to the Court's briefing order clearly demonstrates he made no attempt to mount a habeas challenge to the modification of his probation. Therefore, any civil rights claims based on the probation revocation action, his detention on that matter, and the resultant modification of probation will not accrue until plaintiff shows such modification has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995) (quoting Heck v. Humphrey, S.Ct. at 2372).
Plaintiff seems to feel that the initial charges of terroristic threats were wrongful and that the instant the exonerating affidavits were secured by her attorney, he should have been released with all charges dropped and the motion to revoke probation dismissed. Plaintiff appears to be trying to attach liability to one or more county defendants based on these acts; however, Texas law makes clear that, when acting in the prosecutorial capacity to enforce state penal law, a district attorney is not an agent of the county, but of the state. Esteves v. Brock, 106 F.3d 674 (5th Cir. 1997). Consequently, no liability can extend to county officials or to any county in this respect. As for defendants KING, COYLE, and CRIS WELL, in initiating a prosecution and in presenting the state's case, the prosecutor enjoys absolute immunity from a civil suit for damages under section 1983. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976). Plaintiff claims these defendants acted in bad faith and without probable cause, and, thus, his claim appears to be one of malicious prosecution; however, the facts he has provided defeat this contention. Instead, it is clear that both for the initiation of the terroristic threats charges and the probation revocation action, ample probable cause existed. Moreover, plaintiff has failed to show how any of these defendants acted in bad faith at any time covered by this lawsuit. Thus, Plaintiffs claims on this point lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff has not stated what his claims are against defendants RAHLFS THOMPSON, SETTLE, REED, STRADLEY, VILLASENOR, STRICKLAND WATKINS, and IRIS SANDERS. LAWRENCE; however, it appears he is attempting to sue them, along with SWISHER AND POTTER COUNTIES, for the prosecution of his terroristic threats charges and the probation revocation action.
Plaintiff alleges only that defendant GRIMES filed a "falsified violation report" after he failed to report his arrest to her. Plaintiff alleges no way in which the report was false and no way defendant GRIMES could have learned that it was false. It appears plaintiffs claim against GRIMES depends on his global claims of conspiracy, which are addressed below. Otherwise, plaintiff has utterly failed to state a claim against defendant GRIMES on which relief can be granted.
As to plaintiffs claims concerning those involved in his actual arrest in Dimmit and imprisonment on terroristic threats, as well as his later re-arrest and imprisonment on probation revocation, Fifth Circuit law is clear that police officers acting pursuant to a facially valid judicial warrant enjoy qualified immunity for executing the warrant.Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989). Plaintiff plainly alleges officers confirmed his arrest warrant before arresting him in Dimmit and that a motion to revoke probation preceded and triggered his re-arrest. Consequently, it is clear that plaintiffs claims against those who arrested and detained him lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Again, Plaintiff has not stated what his claims are against defendants DIMMIT COUNTY, DIMMITT INDEPENDENT SCHOOL DISTRICT, DIMMIT COUNTY POLICE DEPARTMENT, THE TULIA POLICE DEPARTMENT, JIMMY MCCASLIN, and JIMMY DON BOYDSTON; however, it appears he holds these defendants liable for his arrest and detention in jail.
Plaintiff claims defendant LLOYD, the officer who investigated the terroristic threats incident, used racial profiling and wrongfully focused on plaintiff, however, plaintiff has alleged no fact to support this allegation. The only hint concerning what LLOYD considered when focusing his investigation on plaintiff is contained in plaintiffs Exhibit A to his Objections, a written statement purportedly by plaintiffs twin brother and co-defendant on the terroristic threat charges, Mandis Charles Barrow. In this statement, Barrow recounts the alleged statement of one or more of the complaining witnesses "when they were getting questioned that the policeman Mark Loyd [sic] said the description of the car they described was "the twins [sic]." This does not support a claim of racial profiling or that defendant LLOYD acted in bad faith and without probable cause. Instead, it merely indicates that LLOYD, as a law enforecment officer in a small community, had some knowledge as to the vehicles driven by the members of that community. Thus, plaintiff has failed to state a claim against LLOYD on which relief can be granted.
The Court notes the 2000 census showed a total population of 4,375 for the city of Dimmit, Texas, with a population of 8,285 for all of Castro County, Texas, where Dimmit is located. See, U.S. CensusBureau Quick Tables at http//factfinder.census.gov.
Plaintiff argues not only were CRISWELL's actions in getting an arrest warrant and participating in plaintiffs arrest wrongful, but that CRISWELL conspired with MARK LLOYD, the investigating officer on the terroristic threats charges, and the remainder of the Swisher County defendants to have plaintiff and his "twin brother arrested and have plaintiffs probation revoked based on the terroristic threats of which someone else was guilty. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990). Further, a district court must insist that a plaintiff suing a public official under section 1983 file a short and plain statement of his complaint, which statement must rest on more than mere conclusions.Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
As explained in the Magistrate Judge's March 29, 2002, Report Recommendation, these acts, if wrongful, still fall outside the Statute of Limitations, foreclosing suit (in these claims.
Plaintiff fees not identify the defendants comprising the "Swisher County defendants".
See plaintiffs April 15, 2002, Objections at page 6-7.
Plaintiff argues he has supported his claims of conspiracy with his allegation that his brother and co-defendant on the terroristic threats charges, Mandis Barrow, was arrested on February 24, 1999, after he located the three complainants at the school the complainants attended and solicited an exonerating affidavit from them. The Court notes that, if any of the three complainants felt coercion to provide such an affidavit when confronted by Mandis Barrow, then Mardis Barrow's actions might well fall within the scope of section 36.05 of the Texas Penal Code, Tampering with a Witness. Thus, the facts alleged by plaintiff do not show the arrest of Mandis Barrow to have been wrongful or unreasonable and do not support plaintiffs claim of conspiracy to violate plaintiffs civil rights. Further, by his Objections, plaintiff makes many new factual allegations to show there was a history of enmity between him and defendant CRISWELL, the County Attorney for Swisher County. Plaintiff allegations show this enmity was based on Criswell's belief "that plaintiff was involved 100% in several crimes or offenses but [Criswell] never was able to obtain the convicted [sic] he chose" These allegations do not constitute allegations of material facts showing defendant CRISWELL or anyone else entered into a conspiracy to deprive plaintiff of his civil rights, as claimed.
Plaintiff also attempts to claim conspiracy under sections 1985 and 1986. The elements of a claim under section 1985 are: (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy. Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969). A section 1986 claim requires an underlying section 1985 claim as its foundation.Irwin v Veterans Administration, 874 F.2d 1092, 1095 (5th Cir. aff'd, 49S U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (l991) (section 1985 conspiracy forms an integral part of a section 1986 claim). Plaintiffs failure to allege material facts to support the existence of any kind of conspiracy dooms his claims whether they are brought under section 1983, 1985 or 1986; and, by his allegations, plaintiff has failed to state a claim on which relief can be granted.
Plaintiffs claims against defendants WEST, JOHNSON, and COMPTON, the complainants on the terroristic threats charges, relied on his global claims of conspiracy. Plaintiff has not alleged these defendants knew him or singled him out in any way when filing their complaint. Plaintiff has alleged no fact which indicates these defendants were state actors and, in the absence of material facts to support a claim of conspiracy, plaintiffs allegations against these defendants fail to state a claim on which relief can be grauted.
Two elements are necessary for recovery in a 12983 civil sit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under of law, usually by a state official or a private individual in conspiracy with such an official.Adickes v. Kress, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).
The Court notes plaintiff has made occasional mention of the words "racism" and "racial"; however, he has alleged no fact which would show that any of the acts or omissions he complains of in this cause were motivated by racial animus. Conclusory allegations lacking reference to mat anal facts are not sufficient to support claims of malice. Al-Raid v. Ingle, 69 F.3d 28 (5th Cir. 1995).
Lastly, although plaintiff has listed JOHN CORNYN, the Attorney General of Texas, as a defendant in the instant suit, he alleges no fact or theory of liability which would connect this defendant to any of the incidents forming the basis for this suit. Consequently, plaintiff has failed to state a claim against CORNYN on which relief can he granted.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommeudation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as corrected and supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADRPT the Report and Recommendation of the United States Magistrate Judge, as corrected and supplemented herein.
IT IS THEREFORE ORDERED that, pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff LANDIS CHARLES BARROW IS DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Based upon this Order, defendants' motion to dismiss is MOOT and no further ruling will be entered. Any other pending motions are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy to this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capital Station, Austin, Texas 78711, and to Claire Laric at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.