Opinion
3:03-CV-2358-R
January 7, 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, 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 brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Iowa Park, Texas. Defendants are Dallas County and Linebarger, Goggan, Blair, Pena Sampson, LLP. The court has not issued process in this case. However, on October 22, 2003, the magistrate judge issued a questionnaire to Plaintiff who filed his answer on November 4, 2003.
Statement of Case: The complaint, supplemented by the answers to the questionnaire, alleges that on July 14, 1999, Plaintiff received a citation from Dallas County dated May 14, 1999, notifying him that property taxes were delinquent on the listed property, and that the taxes would be collected without further notice. Subsequently on December 6, 2002, O'Brien received notice that the property he and Alice McGowan had inherited from Thelma Lawrence in Dallas, Texas, would be sold at a Sheriffs sale on January 7, 2003.
The citation attached to Plaintiffs answers to the Magistrate Judge's questionnaire is in fact process which was served on him notifying him of the fact that a suit for back taxes on the subject real property had been filed in the 116th Judicial District Court of Dallas County, Texas. There is no indication that O'Brien ever filed an answer to the petition. The later served notice of a Sheriffs sale, also attached to Plaintiffs answers, strongly suggests that a default judgment was entered against him and the co-heir, Alice McGowan.
Plaintiff claims that the May 14, 1999 citation deprived him of due process because it failed to advise him of the date on which Ms. Lawrence, Plaintiffs step mother, had died. He contends that had he known that Ms. Lawrence had passed away in September 1994, four and one-half years before the issuance of the citation, he would have immediately contacted Ms. McGowan who would have paid the overdue property taxes. In answer to the questionnaire, Plaintiff states that he contacted Ms. McGowan on November 1, 2000, but that she failed to respond to his letter. (Answer to Question 10). Plaintiff requests monetary damages against all defendants.
O'Brien has been incarcerated since July 1994. See Answer to Question 1.
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).
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 (1989).
Plaintiff seeks to sue Dallas County and Linebarger, Goggan, Blair, Pena Sampson LLP, a tax collection law firm. In answer to the questionnaire, Plaintiff alleges that Dallas County violated his constitutional rights when "[u]nder both 34.01 and 34.015" it "failed to give him explicit notice of Thelma Lawrence's death before they [sic] sold his property." (Answer to Question 14).
A governmental entity, such as Dallas County, can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes the deprivation of a federally protected right. Board of the County Commissioners v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Monell, 436 U.S. at 694; see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).
In the instant case, Plaintiffs complaint and answers to the questionnaire, even when liberally construed, do not allege the necessary facts to establish municipal liability under Monell, Plaintiff relies on sections 34.01 and 34.015, of the Texas Tax Code. (Answer to Question 14). Alleged violations of state law do not state a cognizable claim of a deprivation of a federally protected right. Moreover, neither section of the Code requires specific notice of the date of Ms. Lawrence's death. Further, it is clear that O'Brien received notice of the outstanding tax liability on the subject property when he was served with process in Cause No. 99-30959-TF on or about July 14, 1999. See note 1,supra, and answer to Questions 9 and 10. Therefore, Plaintiffs claim against Dallas County should be dismissed with prejudice as frivolous.
Assuming arguendo that in filing suit on behalf of Dallas County and others to recover taxes owed that the defendant law firm was acting under color of state law, because no cognizable claim under § 1983 is alleged, O'Brien's claim against the law firm is likewise frivolous.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal under § 1915(d) is proper); Watson v. Ault., 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiffs complaint). Because he has failed to allege any cognizable claim for relief against the named Defendants under § 1983, the complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1)and 1915(e)(2)(B)(i).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiffs complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(1). 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 toDouglass 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.