Opinion
2:04-CV-0232.
May 20, 2005
REPORT AND RECOMMENDATION
Plaintiff THOMAS JOSEPH STAUDER, II, acting pro se and while a prisoner incarcerated in the Sanchez State Jail, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
Plaintiff alleges that when he was allowed by the judge to represent himself in his three then-pending criminal cases, the defendant RANDALL COUNTY "did not allow [plaintiff] to go to the law library." Plaintiff says he was told to file a motion to go to the law library and prepared such a motion, along with seven others. Plaintiff claims defendant YAGER did not mail these motions but, instead, placed them in a manila envelope with plaintiff's name on the outside, putting them in his property, which was not returned to him until he was subsequently arrested again.
Plaintiff alleges defendant EVANS tried to conceal YAGER's actions by giving an unprofessional statement in court. Plaintiff then alleges "they" refused to allow him time in the law library. Plaintiff contends "[a] very real violation has occured [sic] in the Denial Claim and the Speedy trial issue. . . ."
Plaintiff alleges defendants FARREN and GORE committed prosecutorial misconduct and are guilty of malicious prosecution and abuse of office.
Plaintiff claims his "Due Process was violated" and requests "dismissal," but does not identify what he wants dismissed. Plaintiff also requests monetary relief of $100,000.00 from each defendant.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff is presently in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is apparently serving sentences on a conviction or convictions to which his request for "dismissal" appears to be directed, and the Court deduces plaintiff is requesting that these convictions be reversed and he be released. To the extent plaintiff is requesting immediate or speedier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Boyd v. Biggers, 31 F3d 279, 283 n. 4 (5th Cir. 1994). If plaintiff is actually requesting some sort of injunctive relief short of release, that relief would necessarily call into question the validity of his convictions and cannot be granted unless plaintiff can show his convictions have already 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." Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Plaintiff's pleadings demonstrate he cannot fulfill the Heck requirements and, therefore, his request for injunctive relief lacks an arguable basis in law and is frivolous.Plaintiff request for monetary relief remains; however, as shown below, plaintiff has failed to state a claim against any defendant on which relief can be granted.
By the Court's April 8, 2005, Questionnaire at question no. 3, plaintiff was required to state each fact and identify each policy showing his claim for liability against defendant COUNTY OF RANDALL. Plaintiff's April 21, 2005 response to this question was that Randall County was responsible for the persons employed at the jail and liable for their negligence. Section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986) (inmate slipped on pillow left on stairs); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) ("negligent medical care does not constitute a valid section 1983 claim."). Theories of vicarious liability, such as respondeat superior, cannot support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). In addition, plaintiffs seeking to impose liability on a municipality under Section 1983 have to identify a municipal policy or custom that caused the plaintiff's injury. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A municipality cannot be held liable solely on a theory of respondeat superior. Brown, 117 S.Ct. at 1388.
Although expressly instructed to do so, plaintiff has utterly failed to identify any policy promulgated by defendant RANDALL COUNTY or any widespread custom or practice which caused his alleged constitutional violation. Plaintiff has failed to state a claim against RANDALL COUNTY on which relief can be granted.
Further, to the extent plaintiff's claims against defendants RICHARDSON, EVANS, and UNRUE rest upon theories of negligence or vicarious liability such as respondeat superior, as noted above, these theories will not support a cause of action under section 1983. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
See plaintiff's April 21, 2005 response to question no. 36 of the Court's Questionnaire.
Plaintiff claims he was denied his right of access to the courts when he was not allowed to go to the law library while representing himself on various criminal charges and when his motions were not mailed to the court. Additional facts are found in plaintiff's April 21, 2005 responses to the Court's Questionnaire. Plaintiff was first arrested because of "several bond surrenders" and was charged with being a felon in possession of a firearm. Also, he was later charged with possession of cocaine, a charge which he says arose out of that first arrest. Plaintiff states he bonded out of jail within twenty-four hours. He says he later plead guilty in a plea agreement to the first charge and that an attorney, Randall Sherrod, represented him with respect to that charge and all of the charges he suffered in this group of arrests. Plaintiff says his conviction arising from the plea bargain agreement has not been reversed. Plaintiff contends the failure to give him access to the law library and the failure to mail his motions denied his rights to due process and a speedy trial. A favorable determination on plaintiff's claims of violation of his rights to due process and to a speedy trial could call into question the validity of his conviction.
Plaintiff's April 21, 2005 response to question no. 10 of the Court's Questionnaire.
Plaintiff's April 21, 2005 response to question no. 10 of the Court's Questionnaire.
Plaintiff's April 21, 2005 response to question nos. 10, 11, and 12 of the Court's Questionnaire.
Plaintiff's April 21, 2005 response to question no. 23 of the Court's Questionnaire.
Plaintiff's April 21, 2005 response to question no. 23 and 26 of the Court's Questionnaire.
Plaintiff's April 21, 2005 response to question no. 29 of the Court's Questionnaire.
Plaintiff's response to question no. 27 reveals he does not characterize his acceptance of a plea bargain and plea of guilty as a conviction; however, the Court recognizes that a plea bargain does result in a conviction. See, e.g., U.S. v. Rivera-Perez, 322 F.3d 350 (5th Cir. 2003).
Since a determination by this Court that plaintiff had sustained a prejudice to his position as a defendant in his criminal case would call into question the validity of his conviction, plaintiff's claims are barred by the Heck requirement that he first show his conviction 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." Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).
In addition, plaintiff states he was convicted of the charges resulting from his rearrest, on which charges Randall Sherrod also represented plaintiff, and that this conviction has not been reversed, invalidated, or called into question. Again, a favorable determination on plaintiff's claims of violation of his rights to due process and to a speedy trial could call into question the validity of his conviction. Consequently, plaintiff's claims concerning these charges are also barred until he can show his conviction 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." Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).
See plaintiff's April 21, 2005 response to Question no. 32 of the Court's Questionnaire.
See plaintiff's April 21, 2005 response to Question no. 26 of the Court's Questionnaire.
See plaintiff's April 21, 2005 response to Question no. 34 of the Court's Questionnaire.
As to defendants FARREN and GORE, respectively the District Attorney and Assistant District Attorney, plaintiff claims they engaged in prosecutorial misconduct, malicious prosecution, and abuse of office by presenting evidence to the Grand jury maliciously with no desire for the truth. A prosecutor's presentation of a case to the Grand jury clearly falls within the traditional function of the prosecutor and is shielded by absolute immunity. Imbler v. Pachtman, 424 U.S. 404, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984). Plaintiff's vague and conclusory allegations against these defendants do not allege any acts by FARREN or GORE which fall outside the umbrella of prosecutorial immunity.
Lastly, to the extent plaintiff alleges the dismissal of some of his charges was delayed by the failure to mail his motions or give him law library access, the Court notes plaintiff has stated these charges were dismissed after presentation to the grand jury. A cause of action may be stated under Title 42, United States Code, section 1983 where prison officials intentionally withhold mail destined for the courts, where there is the additional allegation that the intentional delay of legal mail damaged the prisoner's legal position. Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). Nevertheless, conduct which is merely negligent does not meet the standard for liability under section 1983. Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). Further, if a litigant's position is not prejudiced by the claimed violation, his claim of denial of access to the courts is not valid. Henthorn v. Swinson, 955 F.2d 351, 354 (5th Cir.), cert. denied, 504 U.S. 988, 112 S.Ct. 2974, 119 L.Ed.2d 593 (1992).
Defendants in Texas state courts have no right to notification of grand jury proceedings, Moczygemba v. State, 532 S.W.2d 636 (Tex.Crim.App. 1976); no right to appear personally or by counsel or to present evidence at a grand jury proceeding, McConnell v. State, 34 S.W.3d 27 (Tex.App.-Tyler 2000), or to determine what charges will be pursued for prosecution and, therefore, presented to a grand jury, Neal v. State, 150 S.W.3d 169 (Tex.Crim.App. 2004) (the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in the prosecutor's discretion). Plaintiff has alleged, with respect to some of the charges filed against him, that no gun or cocaine ever existed. Plaintiff has not alleged any specifics as to what was contained in his motions or how he feels they would have resulted in a no bill by the grand jury, or a speedier dismissal of these charges after indictment. Plaintiff has not alleged anything which would show his rights in connection to grand jury proceedings were violated. In short, plaintiff has presented only his conclusory allegations that, in some unidentified way, his motions would have favorably affected the grand jury proceedings or prosecution against him.
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1),
IT IS it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed by plaintiff THOMAS JOSEPH STAUDER, II, pursuant to Title 42, United States Code, section 1983 be DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
IT IS SO RECOMMENDED.