Opinion
3:01-CV-624-H.
November 15, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and the District Court's order filed on August 15, 2001, this case has been re-referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is an inmate presently incarcerated at the Clements Unit of the Texas Department of Criminal Justice — Institutional Division in Amarillo, Texas. Defendants are District Attorney Louis W. Conradt and the Kaufman Police Department. The court has not issued process in this case. However, on April 9 and September 12, 2001, the magistrate judge issued questionnaires to Plaintiff, who filed his answers on April 24 and October 9, 2001, respectively.
Statement of Case: The complaint alleges that the Kaufman Police Department and District Attorney Conradt caused Plaintiff to be charged with a robbery that he did not commit and then had him convicted of the same. According to Plaintiff the shirt found two days after the robbery did not belong to him, and the blood found on the shirt matched neither his blood nor the victim's blood. Plaintiff requests monetary damages against Defendant Conradt (answer to question 3 of the original questionnaire), as well as an order setting aside "the verdict in this cause . . . [as] contrary to the law and the evidence of said conviction" (answer to question 2 of the original questionnaire).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) 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.").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). 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 that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Insofar as Plaintiff requests monetary damages, his claims against District Attorney Conradt are barred by absolute immunity. A district attorney is absolutely immune in a civil rights suit for any action taken pursuant to his/her role as prosecutor in preparing for the initiation of judicial proceedings or for trial. See Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 506-509, 139 L.Ed.2d 471 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir.),cert. denied, 522 U.S. 828 (1997). Plaintiff's claims against Conradt are based on his actions as prosecutor and advocate for the State at his criminal trial. See Graves v. Hampton, 1 F.3d 315, 318 (5th Cir. 1993), abrogated on other grounds, Arvie v. Broussard, 42 F.2d 249 (5th Cir. 1994). Therefore, Plaintiff's claims against Conradt lack an arguable basis in law and should be dismissed with prejudice as frivolous.
Plaintiff's claims against the Kaufman Police Department fare no better. It is well settled that a plaintiff may not bring a civil rights claim against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991) ("our cases uniformly show that unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself"). Plaintiff has failed to show that the Dallas Police Department has ever been granted the capacity to sue or be sued. Thus, Plaintiff's suit seeks relief from an entity that does not exist for such purposes.
See id. at 314.
In addition to seeking monetary damages, Plaintiff seeks to set aside his conviction due to insufficiency of the evidence. This claim when construed in the context of a federal habeas corpus action, should also be dismissed at this time. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct 1827, 1841 (1973) (when a state prisoner challenges the fact and duration of his confinement and the relief sought is a determination that he is entitled to immediate release or speedier release from imprisonment, his sole federal remedy is a writ of habeas corpus). It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court will consider the merits of his claims. 28 U.S.C. § 2254(b) and (c). The exhaustion requirement is designed to "protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings."Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). In order to exhaust, an individual must "fairly present" all of his claims to the highest state court for review. Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). Texas prisoners may satisfy that requirement by presenting both the factual and legal substance of each of their claims to the Texas Court of Criminal Appeals in a petition for discretionary review or in an action for a state writ of habeas corpus brought pursuant to Tex. Code Crim. Proc. art. 11.07 (Vernon Supp. 1997). Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
A review of the complaint and answers to the magistrate judge's questionnaire reflects that Plaintiff has not satisfied the exhaustion requirement. The Court of Criminal Appeals has not had an opportunity to consider the claim raised in this action. Plaintiff concedes that his direct appeal is presently pending before the Fifth District Court of Appeals in Dallas. (Answer to question 2 of the supplemental questionnaire). Accordingly, Plaintiff's claim seeking to set aside his conviction should be dismissed without prejudice to Plaintiff's right to refile after exhausting his state habeas corpus remedies. See Rose v. Lundy, supra. RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous. See 28 U.S.C. § 1915A(b) and 1915(e)(2).
It is further recommended that Plaintiff's request to set aside his conviction, when construed as a request for habeas corpus relief, be dismissed without prejudice for failure to exhaust state remedies.
Under other circumstances, where the complaint alleges a colorable claim, a federal court would be required to applyHeck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, in this instance under the allegations alleged the named Defendants are either absolutely immune or not a suable entity. Thus, the court need not address Heck. The Fifth Circuit Court of Appeals has approved this approach. See Littles v. Bd. of Pardons Paroles Div., 68 F.3d 122, 122 (5th Cir. 1995) (per curiam) ("Even if a complaint is subject to dismissal under Heck it remains appropriate for district courts to resolve the question of immunity before reaching theHeck analysis."); Krueger v. Reimer 66 F.3d 75, 76 (5th Cir. 1995) (per curiam) (holding that despite applicability ofHeck, district court may consider doctrine of absolute immunity as threshold matter in making 28 U.S.C. § 1915(d) frivolousness determination).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.