Opinion
3:01-CV-1161-H.
September 21, 2001
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, this case has been 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 presently confined at the Dallas County Jail in Dallas, Texas. The Defendant is Leigh Demas, assistant district attorney. The court has not issued process in this case. However, on July 31, 2001, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on August 9, 2001.
Statement of Case: Plaintiff seeks to bring this action as next friend on behalf of his fifteen-year old daughter, Lydia Hernandez. (Complaint ¶ V and answer to Questions 3 and 9). Lydia is the complainant in criminal Cause No. 0072876, a sexual assault case presently pending against Plaintiff in the 204th Judicial District Court of Dallas County, Texas. (Answer to Questions 1-2). On May 9, 2001, Lydia wrote an affidavit of non-prosecution, seeking to "drop" all charges against her father. (Answer to Question 3). Demas thereafter interviewed Lydia on two separate occasions about her decision not to testify against her father. (Answer to Question 4). During these interviews, Demas allegedly harassed, intimidated and "violently threatened Lydia" to the point of making her cry. (Answer to Questions 4, 6 and 7). Demas even told Lydia that she would force her to testify and that she would make her affidavit of non-prosecution "burn in court." (Answer to Question 8).
Plaintiff alleges that Demas' actions violated Lydia's civil and constitutional rights and "the statutory rights of a child." (Complaint ¶ V and Answer to Question 7). He requests injunctive relief against Demas in the form of an order directing her to cease tampering with Lydia, a material witness in his pending criminal case, and directing her to stop harassing and threatening Lydia. He also requests an order forbidding Demas from contacting Lydia. (Complaint ¶ VII).
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 relief28 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).
To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988).
Plaintiff's complaint, supplemented by the answers to the magistrate judge's questionnaire, does not allege a violation of his daughter's constitutional rights. In answer to Question 7, Plaintiff alleges that his daughter's "Fifth Amendment right was violated [when] she was forced to appear in person at the D.A.'s office and sit, and accept all of the intimidation and harassment that defendant Demas incurred upon . . . [her] during the last week of May of 2001."
The Fifth Amendment reads as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; not shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Plaintiff has not identified a case to establish that Demas' questioning of his daughter violated her Fifth Amendment rights or her statutory rights as a child. (See Answer to Question 7). Nor has this court found any. Therefore, any claim for injunctive relief brought by Plaintiff as next friend of his daughter lacks an arguable basis in law and should be dismissed as frivolous.
Liberally construed and notwithstanding Mr. Hernandez's assertion that he has brought this action on behalf of his minor child, it appears that his primary motivation in seeking injunctive relief is to preclude or impede his daughter's testimony against him in his pending state criminal case. As reflected in his answers to the magistrate judge's questionnaire, his daughter is the alleged victim in the sexual assault charge in No. 0072876. Plaintiff also states that he is represented by counsel in that proceeding.
It is a settled principle of comity that state courts should be allowed to exercise their functions without being hampered by federal intervention, particularly in instances where a criminal proceeding against the plaintiff is set in motion prior to his filing a civil rights claim in federal court. Hicks v. Miranda, 422 U.S. 332, 348-49, 95 S.Ct. 2281, 2291-92, 45 L.Ed.2d 223 (1975). If in fact Hernandez has a meritorious complaint regarding the conduct of the prosecutor, he should have his attorney raise the matter with the judge presiding over his criminal case.
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)(1) and 1915(e)(2)(B)(i)
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.