Opinion
No. 3:03-CV-0458-R
January 12, 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, a prisoner currently incarcerated in the Navarro County Jail, brings this action pursuant to 42 U.S.C. § 1983 against the Corsicana Police Department and its Chief, G.M. Cox. (Compl. at 1; Answer to Question 1 of Magistrate Judge's Questionnaire (MJQ). He claims that Chief Cox slandered him by identifying him as a rape suspect in statements which were published in a Corsicana newspaper in February and May 2002. (Compl. at 2, 4.) As of the filing of this suit in March 2003, plaintiff was still awaiting trial on rape charges in a case in which he had been named as a suspect. ( See Answer to Question 2 of MJQ.) Plaintiff seeks monetary damages in this action. (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
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from officers or employees of a governmental entity, plaintiffs complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915 A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal if the Court finds the complaint "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."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. In addition, 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
Plaintiff seeks monetary damages under 42 U.S.C. § 1983 against a city police department and its Chief of Police for alleged slanderous statements made by the Chief of Police. Section 1983 "provides a federal cause of action 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). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
A. Claims Against Navarro Police Department
Plaintiff makes no specific claim against the Navarro Police Department. Any claim against such entity apparently arises from the fact that it employs Chief Cox. However, a plaintiff may not bring a civil rights action against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991). In Darby, the Fifth Circuit held 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." Id. at 313. A police department is not a jural entity that can be sued. Id. at 313-14 (holding that a police department is not a jural entity). Plaintiff thus seeks relief from an entity that is not subject to suit under § 1983. Consequently, the action against the police department should be dismissed as frivolous under 28 U.S.C. § 1915(e)(2) and 1915A.
B. Claims against Chief of Police
Plaintiff's claim against Chief Cox stems from alleged slanderous statements made by Chief Cox to a Corsicana newspaper. To the extent slander can support a claim under 42 U.S.C. § 1983, plaintiff must allege facts sufficient to state a claim under that statute. See Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001) (suggesting that a slander claim could fall under § 1983), cert. denied, 535 U.S. 1055 (2002). In this instance, plaintiff merely asserts that Chief Cox called him a "rape suspect" and placed him "in the public eye before" being charged and without a full investigation. (Compl. at 4.) He asserts that he "lost many close friends and a fiancee" due to the alleged slanderous statements. ( Id.) He never alleges that any comment or statement by Chief Cox deprived him of a constitutional or other federal right. He thus fails to state a claim under § 1983. Mowbray, 274 F.3d at 277.
A claim of slander also arises under state law. Under Texas law, "[s]lander is a false oral statement that is published to a third person without a legal excuse, which refers to an ascertainable person." See Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 496 (Tex.App. — Dallas 2003). This Court may exercise supplemental jurisdiction over such a pendent state law claim. See 28 U.S.C. § 1367. Plaintiff does not allege that Chief Cox made any false comments or statement, only that Chief Cox made the statements before an investigation was conducted. Further, under Texas law, "truth, even substantial truth, is a complete defense." Austin, 118 S.W.2d at 496. Plaintiff was ultimately charged with, and is currently awaiting trial for, sexual assault and rape in cases in which he was named as a suspect. This demonstrates that Chief Cox's statements were substantially true. Accordingly, this claim also fails under Texas law.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS this action under 42 U.S.C. § 1983 with prejudice as frivolous and for the failure of plaintiff to state a claim upon which relief may be granted. The dismissal of this action will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).