Opinion
No. 3:04-CV-1700-M.
August 19, 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
On August 5, 2004, the Court received an "Original Petition for Relief' from plaintiff, an inmate in the Texas prison system, in which she seeks monetary damages from the District Attorney (DA) of Dallas County for intentional infliction of emotional distress and discrimination based upon race, gender, and ethnicity. ( See Orig. Pet. at 1-4.) On August 9, 2004, the Court received an amended complaint filed on a standard form used in actions filed pursuant to 42 U.S.C. § 1983. ( See Am. Compl. at 1.) The amended complaint asserts the claim for intentional infliction of emotional distress but names the District Attorney's Office as the defendant instead of the DA. ( Id. at 1, 3.) The Court liberally construes the claims in plaintiffs amended complaint as being asserted against both the DA and the Dallas County DA's Office.
Plaintiff alleges that after "exercis[ing] complete quietness" toward her appointed counsel upon the denial of a motion for substituted counsel, she was excused from the courtroom. Her attorney spoke to the DA, and then the DA came to her
with an angry look on his face . . . stood in front of [her] and said, "I am so tired of you people always coming in here lying and crying about being drug users so that you can get a rehab and you don't have to go to prison. But not this time! You may as well take the two years TDC that I am offering you because I am not going to let you go to a rehab. I am going to make an example out of you, so that when another one of you people want to cry rehab you will think about it first."
(Am. Compl. at 4 and attached page.) Based upon these facts, plaintiff seeks monetary damages for intentional infliction of emotional distress. ( Id. at 4.) No process has been issued in this case.
II. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from a governmental entity and its officers or employees, plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiff's complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is 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. See id.
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. 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).
III. SECTION 1983 RELIEF
Pursuant to 42 U.S.C. § 1983, plaintiff seeks relief for actions by an unidentified assistant DA. Section 1983 provides a federal cause of action and affords redress 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). To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).
A. Claims Against District Attorney
Plaintiff alleges that an unidentified Dallas DA intentionally inflicted emotional distress on her by his actions during a criminal proceeding against her. However, prosecutors enjoy absolute immunity to initiate and pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Plaintiff has made no allegation that the DA acted other than in his adjudicative role as prosecutor. The prosecutor thus has absolute immunity against plaintiff's claims.
To the extent plaintiff claims that the DA maliciously prosecuted her based her race, gender, or ethnicity, the claim also fails because the DA has absolute immunity to such claims. See Brummett v. Camble, 946 F.2d 1178, 1181 (5th Cir. 1991). Moreover, the Fifth Circuit has recently clarified that "`malicious prosecution' standing alone is no violation of the United States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under federal and not state law." See Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) ( en banc), cert. filed, No. 03-1269 (Mar. 2, 2004). In other words, there is no "freestanding constitutional right to be free from malicious prosecution." Id. at 945. Thus, any allegation of malicious prosecution fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983.
Furthermore, even prior to Castellano, when the Fifth Circuit recognized "a constitutional right under the Fourth Amendment to be free from malicious prosecution," it did so only when "all of its common law elements [we]re established." See Izen v. Catalina, 256 F.3d 324, 327-28 (5th Cir. 2001) (citations and internal quotation marks omitted).
To sustain a malicious prosecution claim, Texas law requires that a plaintiff show "(1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff."Id. at 328 (quoting Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994)). In this instance, plaintiff makes no allegation that the action terminated in her favor or that she was innocent of the alleged charges. Consequently, plaintiff cannot succeed on a malicious prosecution claim even under the law as it existed prior to Castellano.
B. Claims Against District Attorney's Office
The claims against the Dallas County District Attorney's Office likewise fail. 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) (holding that a police department is not a jural entity). 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. The district attorney's office is not a jural entity that can be sued. Jacobs v. Port Neches Police Dep't, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (holding that county district attorney's office is not a legal entity capable of suing or being sued). Plaintiff thus seeks relief from an entity that is not subject to suit under § 1983. Consequently, the action against it should be dismissed as frivolous under 28 U.S.C. §§ 1915(e)(2) and 1915A.
The Court could dismiss the claims against Dallas County District Attorney's Office without prejudice to plaintiff's filing an amended complaint that names a proper defendant. It declines to do so in this instance because the Court has liberally construed her amended complaint as suing both the Dallas County DA and the District Attorney's Office. Furthermore, under the facts alleged by plaintiff, any amendment would not state a claim upon which relief can be granted.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiff also appears to make a state-law based claim of intentional infliction of emotional distress against defendants. Because all of plaintiff's federal claims have been eliminated prior to trial the Court could decline to exercise jurisdiction over this pendent state-law claim. See Batiste v. Island Records Inc., 179 F.3d 217, 227 (5th Cir. 1999) (recognizing that the "`general rule' is to decline to exercise jurisdiction over pendent state-law claims when all federal claims are dismissed or otherwise eliminated from a case prior to trial"). However, the general rule for declining to exercise jurisdiction over pendent state-law claims is "neither mandatory nor absolute." Id. In certain circumstances, the Court may retain jurisdiction over such claims despite the elimination of all federal claims. See Smith v. Amedisys Inc., 298 F.3d 434, 447 (5th Cir. 2002). In determining whether to retain jurisdiction over pendent state law claims, the courts consider the provisions of 28 U.S.C. § 1367(c) and issues of judicial economy, convenience, fairness, and comity. Id. In this instance, these considerations favor retention of jurisdiction to consider the pendent state-law claim.For the reasons stated in preceding sections, plaintiff's claim of intentional infliction of emotional distress fails against the named defendants. It also fails under state law. To succeed on such claim under Texas law, she must show that defendants, through an intentional or reckless act that amounts to extreme and outrageous conduct, caused her severe emotional distress. Lang v. City of Nacogdoches, 942 S.W.2d 752, 759 (Tex.App. — Tyler Mar. 27, 1997, writ denied). "[T]he Texas Supreme Court [has] described the outrageous conduct element as that which "goes beyond all possible bounds of decency as to be regarded as atrocious and utterly intolerable in a civilized society." Id. (quoting Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993)). Although plaintiff makes a claim for intentional infliction of emotional distress, she has not alleged either outrageous intolerable conduct or that the acts of defendants caused her severe emotional distress. "`Severe' distress is that which no reasonable person could be expected to endure and must be more than mere worry, anxiety, vexation, embarrassment, or anger." Huckabay v. Moore, 142 F.3d 233, 242 (5th Cir. 1998) (citations omitted). Plaintiff has presented nothing to indicate that she suffers from severe emotional distress caused by the defendants' conduct. Accordingly, the Court should dismiss the pendent state-law claim.