Opinion
CIVIL ACTION NO. 4:02-CV-1013-Y.
May 21, 2003.
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b) AND UNDER 28 U.S.C. § 1915(e)(2)(b)
On February 5, 2003, plaintiff Isaac Rusher Jesuorobo was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge, and he was ordered to pay the full filing fee required by the Prison Litigation Reform Act (PLRA). Jesuorobo's complaint under 42 U.S.C. § 1983 names as defendants Robert Gill, Judge, 213 Judicial District Court, Tarrant County, Texas; Thomas A. Wilder, Tarrant County District Clerk; Tarrant County District Attorney Tim Curry and Assistant District Attorney Angela Bell; Ericka Ream-Tinney, Child Protective Services, Arlington, Texas; private attorneys Marcus A. Norman and Vernon L. Witherspoon; J.P. Rogers, Detective, City of Arlington, Texas; Bobby Doe, a polygraph examiner; and private individual Regina Casey Williams. (Compl. Style; attachment pages). Jesuorobo alleges that he was wrongfully arrested, indicted and convicted in the 213th Judicial District Court of Tarrant County, Texas, on the charge of indecency with a child — fondling in cause number 0850019D. He alleges that he was the victim of: a malicious prosecution by the judge, prosecutors, and county clerk; false allegations by friend Regina Casey Williams; improper investigation by Child Protective Services employee Ericka Ream-Tinney; false allegations by City of Arlington detective Rogers; improper administration of a polygraph exam by examiner "Bobby" at the direction of Rogers; a conspiracy by his lawyers Marcus Norman and Vernon Witherspoon with some of these other defendants; and inadequate representation of him by lawyers Norman and Witherspoon. (Compl. ¶ V; attachment pages; April 9, 2003, Supplement; April 11, 2003, Supplement.) Jesuorobo seeks total monetary damages of $4,800,000.00, and he seeks a reversal of the trial court, a hearing on his allegations, and relief directly against the attorneys such as suspension of their licenses. (Compl.; ¶ VI; attachment pages "Relief.")
Jesuorobo filed, on January 6, 2003, a document construed as a motion to change style. This motion [docket 5] is granted to the extent that the defendants' names are spelled and listed as set forth in that document.
Although Plaintiff did not identify the cause number and conviction, through staff telephone contact with the office of the Tarrant County District Clerk, the Court has obtained and takes judicial notice of the record in this case. See generally FED. R. EVID. 201; see also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier habeas proceedings in different court).
Jesuorobo submitted additional allegations in a document filed April 9, 2003, entitled "Memorandum," and a document filed April 11, 2003, entitled "C.P.S. Detective." Although these documents fail to comply with the local and federal rules as to the form and substance of amendments, rather than strike these papers, for the purposes of this review under 28 U.S.C. § 1915(e) and 1915A, the Court has considered them as supplements to Jesuorobo's complaint.
A complaint filed in forma pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2)(B), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Furthermore, as a part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." After review and consideration of Jesuorobo's claims in this suit, the Court finds that they must be dismissed under the authority of these provisions.
Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e) requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 2003).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2003); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)).
See 28 U.S.C.A. § 1915A(a) (West Supp. 2003) .
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
In order to assert a claim for damages for violation of federal constitutional rights under 42 U.S.C. § 1983, a plaintiff must set forth facts in support of both of its elements: (1) the deprivation of a right secured by the Constitution or laws of the United States; and (2) the deprivation was imposed by a person acting under color of law. As to Jesuorobo's allegations against the attorneys, and Regina Casey Williams, he has failed to satisfy the second element. Jesuorobo has failed to show that Witherspoon or Norman, private attorneys, acted under color of law. Because an attorney, whether private or appointed, owes his only duty to the client and not to the public or the state, his actions are not chargeable to the state. Furthermore, Plaintiff has made no allegation that Williams was acting on behalf of the government. Jesuorobo cannot show that Witherspoon or Norman were acting under color of law, and has not alleged how Williams could act under color of law, so any claim for violation of his constitutional rights asserted through 42 U.S.C. § 1983 against these defendants must be dismissed under 28 U.S.C. § 1915A(b) (1) and 1915(e)(2)(B)(i) and (ii).
See West v. Atkins, 487 U.S. 42, 48 (1988) (citing cases); Resident Council of Allen Parkway Village v. U.S. Department of Housing and Urban Development, 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).
See Thompson v. Aland, 639 F. Supp. 724, 728 (N.D. Tex. 1986), citing Polk County v. Dodson, 454 U.S. 312, 318 (1981); see also Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993).
Plaintiff has not challenged his custody on the basis of the ineffectiveness of his counsel, and he is advised that any such claim must be asserted though a petition for writ of habeas corpus.
Even to the extent such claim could be asserted, Plaintiff is advised that exhaustion of his state remedies is generally required prior to pursuing habeas relief in federal court. In order to exhaust state remedies, a petitioner must fairly present all of his claims to the state courts. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). In Texas, all claims must be presented to the Court of Criminal Appeals. Procunier, 762 F.2d at 432. To present claims to the Court of Criminal Appeals, a petitioner may either file a petition for discretionary review with the Court of Criminal Appeals after direct appeal, or he may file a post-conviction application for writ of habeas corpus. See Feist v. Scott, 885 F. Supp. 927, 930 (E.D.Tex. 1995); see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally), citing Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir. 1990); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995). The state writ of habeas corpus is available under article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.ANN. art. 11.07 et. seq. (Vernon Supp. 2003).
The balance of Jesuorobo's claims must be dismissed as a matter of law for other reasons. With regard to several of the defendants, this Court must apply the doctrine of absolute immunity. Although this Court will also subject Plaintiff's claims to an analysis under Heck v. Humphrey, 512 U.S. 477 (1994), "it is appropriate for the district court to resolve the question of absolute immunity before reaching the Heck analysis when feasible." With regard to Plaintiff's claims against Judge Robert Gill, judges are absolutely immune from claims for damages arising out of acts performed in the exercise of their judicial functions. Absolute judicial immunity can be overcome only if the plaintiff shows that the complained-of actions were nonjudicial in nature or that the actions were taken in the complete absence of all jurisdiction. Because the complained-of conduct by Judge Gill was judicial in nature and was undertaken pursuant to the jurisdiction provided to the 213th Judicial District Court, Judge Gill is entitled to absolute immunity from this suit. As a result, all of Plaintiff's claims against Judge Gill will be dismissed pursuant to 28 U.S.C. § 1915A(b)(2) and alternatively pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
Mireless v. Waco, 502 U.S. 9, 11 (1991), citing Forrester v. White, 484 U.S. 219, 227-229 (1988) and Stump v. Sparkman, 435 U.S. 349, 360 (1978); see also, Boyd, 31 F.3d at 284.
Mireless, 502 U.S. at 11; Boyd, 31 F.3d at 284.
The doctrine of absolute immunity also applies to defendants Tim Curry and Angela Bell. Jesuorobo has named Curry as the person who signed his indictment and allowed the prosecution of him to proceed without proper investigation. As to Bell, Plaintiff alleges she knowingly employed false testimony without proper investigation, encouraged the presentation of false evidence, withheld evidence, and conspired with other defendants. The Supreme Court has consistently held that acts undertaken by a government prosecutor in the course of his role as an advocate for the government are cloaked in absolute immunity. The Court has further explained that absolute immunity is afforded based upon whether the prosecutor is acting "in his role as advocate for the State." Here, Curry's involvement, if any, in the charges filed against Jesuorobo stem from his role as the district attorney. Likewise, even assuming Plaintiff's allegations against Bell are true, she took such action in her role as prosecutor on behalf of the State of Texas. Thus, defendants Curry and Bell are entitled to absolute prosecutorial immunity, and Plaintiff's claims against them must be dismissed under the authority 28 U.S.C. § 1915A(b)(2) and 28 U.S.C. § 1915(e)(2)(B)(iii).
Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) .
Imbler, 424 U.S. at 431 n. 33.
With regard to the remainder of Plaintiff's claims, and in the alternative as to the defendants already subject to dismissal for other reasons, the Court concludes that Plaintiff's claims are not cognizable under 42 U.S.C. § 1983. Plaintiff is seeking monetary damages for alleged violations of his constitutional rights arising from his conviction for indecency with a child — fondling. In Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue until that conviction or sentence 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." As in Heck, Plaintiff's challenges, if successful, necessarily would imply the invalidity of his incarceration and conviction, and are thus not cognizable under § 1983 unless Plaintiff has satisfied the conditions set by Heck. Plaintiff has failed to establish that he has met one of the prerequisites to a § 1983 action set forth by the Supreme Court. To the contrary, Plaintiff acknowledged that he has not filed any other lawsuits in state or federal court relating to his imprisonment. (Compl.; ¶ I(A)). Thus, Plaintiff remains in custody and has not shown that his conviction has been invalidated by a state or federal court. As a result, Plaintiff's remaining claims for monetary damages are not cognizable under § 1983, and must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)
Heck, 512 U.S. at 486-87; see also Wells v. Banner, 45 F.3d 90, 94 (5th Cir. 1995).
See Heck, 512 U.S. at 487-88.
It is therefore ORDERED that all of Plaintiff's claims against Marcus Norman, Vernon Witherspoon, and Regina Casey Williams, be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
It is further ORDERED that all of Plaintiff's claims against Robert Gill, Tim Curry, and Angela Bell, be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(2) and alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B) (iii).
It is further ORDERED that all of Plaintiff's remaining claims be, and they are hereby, DISMISSED WITH PREJUDICE to their being asserted again until the Heck v. Humphrey conditions are met, under the authority of 28 U.S.C. § 1915A(b) (1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
And, in the alternative, all claims against the defendants already dismissed for other reasons.
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).