Opinion
Civil Action No. 3:02-CV-1219-D
March 3, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendants Chief of Police and Dallas Police Department "s Motion to Dismiss Under Rule 12(b), filed August 14, 2002, which was referred to United States Magistrate Judge Irma Carrillo Ramirez for hearing, if necessary, and for findings and recommendation pursuant to the District Court's Order of Reference, filed November 4, 2002. After thoroughly reviewing the record, the Court's Orders, and the applicable law, the Court is of the opinion that the motion should be GRANTED and Plaintiff's suit should be DISMISSED with prejudice.
I. BACKGROUND
A. Procedural History of the Case
On May 14, 2002, Christopher Taylor ("Plaintiff") filed this suit in forma pauperis in Texas state court, alleging a civil and criminal conspiracy between City of Euless Municipal Court Judge Lacy Britten ("Judge Britten"), the Dallas Police Department ("DPD"), and the Chief of the Dallas Police Department ("the Chief") to "commit capital murder" and violate his constitutional rights under the 8th and 14th Amendments. (Compl. at 1.) In particular, Plaintiff alleges that hours after he filed a motion for summary judgment against multiple defendants on May 7, 2002, DPD officers began "stalking" him. Id. Plaintiff further alleges that Judge Britten fined his fiancee $400 for traffic tickets on May 8, 2002, in retaliation for Plaintiff's suits against various Euless officials. Id.
Judge Britten filed her answer on June 7, 2002, and the Chief and DPD answered on June 10, 2002. On June 12, 2002, Judge Britten removed the case to this Court. (Defs. Br. at 1.) On August 14, 2002, DPD and Chief filed the instant motion to dismiss. They argue that Plaintiff's claims should be dismissed because he fails to state a claim upon which relief may be granted, the claims are barred by res judicata, the DPD is not a jural entity amenable to suit, and Chief is not liable for civil rights violations under a theory of respondeat superior. Judge Britten has not moved to dismiss. Plaintiff has filed no response.
B. Plaintiffs Prior Suits
Plaintiff has filed at least fourteen related suits during the past two years. Several of those suits have been dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2). Consequently, the Court has repeatedly ordered Plaintiff to either prepay his filing fee or obtain leave of court to proceed in forma pauperis. Plaintiff is also required to obtain leave of court to maintain an in forma pauperis suit that is removed from state court, such as this suit. See Taylor v. Solis, No. 3:02-CV-0042-H, Ord. Final Judg. at 1 (N.D. Tex. Jan. 17, 2002).
For a thorough discussion of Plaintiff's prior suits see Taylor v. Maple Ave. Economic Development Corp., 2002 WL 1758189 (N.D. Tex. July 26, 2002) (Fitzwater, J.), and Taylor v. Judge Jerry Buchmeyer, No. 3:02-CV-0674-G (N.D. Tex. Aug. 27, 2002) (Fish, C.J.).
See Taylor v. Solis, No. 3:01-CV-1308-L (N.D. Tex. Aug. 30, 2001); Taylor v. Clerk of Court, No. 3:01-CV-1375-X (N.D. Tex. Aug. 20, 2001); Taylor v. Stickney, No. 3:01-CV-1406-H (N.D. Tex. Dec. 5, 2001); Taylor v. Boyle, No. 3:01-CV-1498-L (N.D. Tex. Sept. 6, 2001); Taylor v. Lindsay, No. 3:01-CV-1510-M (N.D. Tex. Sept. 14, 2001); Taylor v. Kaplan, No. 3:01-CV-1628-R (N.D.Tex. Oct. 12, 2001); Taylor v. Solis, No. 3:02-CV-0042-H (N.D. Tex. Jan. 17, 2002).
See Boyle, No. 3:01-CV-1498-L; Lindsay, No. 3:01-CV-1510-M; Kaplan, No. 3:01-CV-1628-R.
Shortly after the Court dismissed Plaintiff's suit on January 17, 2002, for failure to obtain Court approval to maintain a lawsuit removed from state court, Plaintiff filed yet another in forma pauperis suit in state court. That lawsuit was removed to federal court. Following a hearing on March 15, 2002, the Court found Plaintiff in contempt and prohibited him from filing, without prior written consent of Magistrate Judge Wm. F. Sanderson, any suit in federal court and "any suit in any court (including but not limited to, federal, state, county, and municipal court)" asserting claims similar to those in the pending suit. See Taylor v. Solis, No. 3:02-CV-0398-H, Ord. at 1 (N.D. Tex. Mar. 15, 2002). In direct contravention of the Court's contempt order, Plaintiff subsequently filed three other lawsuits in state court, including this action. Only the instant suit remains.
See Maple Ave. Economic Development Corp., 2002 WL 1758189 (dismissing Plaintiff's claims with prejudice and enjoining him from filing any lawsuit in any court without leave of court), and Judge Jerry Buchmeyer, No. 3:02-CV-0674-G (dismissing Plaintiff's claims with prejudice and entering a sanctions order directing the clerk to return to Plaintiff, unfiled, any pleading, motion, or other document submitted without the advance written permission of Magistrate Judge Wm. F. Sanderson and to summarily dismiss as frivolous any case initiated by Plaintiff that is received indirectly through transfer or removal).
II. ANALYSIS
A. Dismissal Pursuant to the Court's OrdersOn January 17, 2002, the Court ordered Plaintiff to obtain leave of court before maintaining an in forma pauperis suit removed from state court. Solis, No. 3:02-CV-0398-H, Ord. Final Judg. at 1. Subsequently, on May 14, 2002, Plaintiff filed this suit in forma pauperis in state court, and it was removed to this Court on June 12, 2002. The record does not reflect that Plaintiff obtained leave of court to maintain this suit here. Without such leave, the instant suit is barred. Id. Thus, the Court recommends that Plaintiff's case be dismissed pursuant to the Court's Orders.
B. Dismissal Pursuant to FED.R.Civ.P. 12(b)(6)
Notwithstanding the above, DPD and Chief argue that Plaintiff's Complaint fails to state a cognizable claim and should be dismissed pursuant to FED.R.Civ.P. 12(b)(6). A "motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Maple Ave., 2002 WL 1758189, at *3 (citing Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 598 (1969)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam). In analyzing the complaint, the court will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Maple Ave., 2002 WL 1758189, at *3, "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. Although Rule 12(b)(6) "dismissal is ordinarily determined by whether the facts alleged in the complaint give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings." Id. at *4 (citing Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). When a successful affirmative defense appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be appropriate. Kansa Reinsurance Co. v. Congressional Mtg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994).
1. Plaintiff's Claims Against DPD are Barred by Res Judicata
DPD argues that Plaintiff's claims are barred by res judicata. (Defs. Br. at 4.) Plaintiff alleges that DPD conspired to "commit capital murder" and violated his rights under the 8th and 14th Amendments to the U.S. Constitution. (Compl. at 1.) Plaintiffs claims are based on alleged "stalking" and harassment by DPD and his being "made homeless by a mock, staged trial in downtown Ft. Worth." Id. DPD argues that Plaintiff has pursued similar claims in his previously dismissed suits. In its answer, filed in state court, DPD affirmatively defends that Plaintiff's claims are barred by the doctrine of res judicata. (DPD Ans. at 4.)
"The doctrine of res judicata, or claim preclusion, bars litigation of any issue connected with a cause of action or defense that, in the use of diligence, a party might have tried or actually did try." Maple Ave., 2002 WL 1758189, at *7 (citing Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 n. 1 (5th Cir. 2000)). It has four elements: "(1) the parties must be the same in both cases; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in both cases." Id.
The first three requirements are met regarding the claims against DPD. Plaintiff has filed five suits against a "Dallas Police Substation," arguing that he is being stalked and harassed in violation of his constitutional rights. See Judge Jerry Buchmeyer, No. 3:02-CV-0674-G, Mem. Ord. at 3, 9, 10, 13 (discussing Plaintiff's previous suits). Although Plaintiff is now suing DPD and not a "Dallas Police Substation," the latter is a subordinate part of the former. Thus, they have a sufficiently close relationship for there to be privity between the two. C.f. Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1173 (5th Cir. 1992) (noting that "[a] non-party defendant can assert res judicata so long as it is in `privity' with the named defendant"); see also Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977) (noting that privity is nothing more than a "legal conclusion that the relationship between the one who is a party on the record and the non-party is sufficiently close to afford application of the principle of preclusion") (citation omitted); accord Gray v. Lacke, 885 F.2d 399, 495 (7th Cir. 1989) ("[I]n official-capacity suits, privity exists between government entities and their employees.") (citations omitted). Because there is privity between a "Dallas Police Substation" and DPD, the first element is satisfied. Further, three of the previous suits were dismissed on the merits by final judgment rendered by courts of competent jurisdiction. Maple Ave., 2002 WL 1758189, at *4; Judge Jerry Buchmeyer, No. 3:02-CV-0674-G, Mem. Ord. at 3, 9, 10, 13. Therefore, the second and third elements are satisfied.
In determining the fourth element, "[t]he critical issue is not the relief requested or the theory asserted. The question is instead whether [the] plaintiff bases the two actions on the same nucleus of operative facts." Smith v. Schrock, 2002 WL 432980, at *6 (N.D. Tex. Mar 15, 2002) (citing In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990)). Plaintiff alleges that DPD placed an "illegal tracking device" on his fiance's car that allowed DPD to stalk and harass him on May 7 and 8, 2002. (Compl. at 1.) Although these acts were alleged to have happened after Plaintiff filed his previous complaints, Plaintiff concedes that his "current claim against the Defendants emanate [sic] from Plaintiff's civil case #3-00CV1277-P[.]" (Compl. at 1.) On August 3, 2001, Plaintiff complained of "defendants in Plaintiffs [sic] multiple suit" stalking and harassing him by using a tracking device. See Boyle, No. 3:01-CV-1498-L, Compl. at 1-2. Plaintiff has also repeatedly raised his claim that he was "made homeless by a mock, staged trial in downtown Ft. Worth." Id.; see also Taylor v. AAMCO Transmissions, Inc., No. 3:01-CV-0670-L (N.D. Tex. Jun. 26, 2001). Thus, Plaintiff's current claims arise out of the same nucleus of operative facts as his previous actions. Indeed, in Maple Ave., the Court dismissed Plaintiff's claims against "Dallas Police Substation" as barred by res judicata. Maple Ave., 2002 WL 1758189, at *8 (citing Brown v. Felsen, 422 U.S. 127, 131 (1979)). Accordingly, because Plaintiff raises the same claims he previously asserted against the DPD, these claims are barred by res judicata and should be dismissed with prejudice.
2. DPD is Not Amendable to Suit
Plaintiffs claims against DPD should be dismissed for the additional reasons that DPD lacks the capacity to be sued. (Defs. Br. at 6.) Viewing Plaintiff's allegations in the light most favorable to Plaintiff, they fail to overcome this affirmative defense. Under federal law, the capacity of an entity to sue or be sued "shall be determined by the law of the state in which the district court is held." FED.R.CIV.P. 17(b), cited in Darby v. Pasadena Police Dept., 939 F.2d 311, 313 (5th Cir. 1991). Texas law established the City of Dallas as a home-rule municipality with the power to provide for its police department. See TEX. LOCAL GOV'T ANN. § 341.003. In the City of Dallas' Charter, it established DPD and reserved for itself the power to sue DPD. See Dallas, Tex., Charter ch. II, § 1(2) (1999), cited in Webb v. City of Dallas, 314 F.3d 787, 793 n. 22 (5th Cir. 2002). Thus, DPD lacks a jural existence, and Plaintiff cannot prove otherwise. Consequently, Plaintiff's claims against DPD should be dismissed with prejudice. See Wilson v. Dallas Police Dept., 2002 WL 911355, at *1 (N.D. Tex. Apr. 29, 2002) (dismissing case against Dallas Police Department because it is not a jural entity amendable to suit).
3. Chief is Not Liable under Respondeat Superior
Plaintiff alleges that Chief conspired to "commit capital murder" and violated his rights under the 8th and 14th Amendments to the U.S. Constitution. (Compl. at 1.) Chief argues that Plaintiff's claims arise under the federal civil rights statute, 42 U.S.C. § 1983. (Defs. Br. at 6.) Chief further argues that § 1983 requires personal involvement, which Plaintiff has not alleged. (Defs. Br. at 6-7.) Viewing the factual allegations in the light most favorable to Plaintiff, they fail to support a claim against Chief in his official or individual capacity. It appears that Plaintiff's claims against Chief arise under § 1983. Section 1983 "provides a federal cause of action 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).
a. Official Capacity
To the extent that Plaintiff seeks relief from Chief in his official capacity, such action is properly against the City of Dallas, the entity of which the Chief is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore, to survive summary disposition, Plaintiff must allege a policy, practice, or custom of the City of Dallas that was a "moving force" behind violating his constitutional rights. See Polk County v. Dodson, 454 U.S. 312, 326 (1981); see also Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001). Because Plaintiff alleges no such policy, practice, or custom, Plaintiff's claims against Chief in his official capacity should be dismissed. See id.
b. individual Capacity
Plaintiffs claims against Chief in his individual capacity should also be dismissed. It is well settled that in a § 1983 action, the plaintiff must assert that the defendant was personally involved in violating the plaintiffs constitutional rights. Thompson v. Steele, 709 F.3d 381, 382 (5th Cir. 1983). Plaintiff lists Chief only in the Complaint's caption and nowhere in the body of his allegations. (Compl. at 1.) Construing Plaintiff's Complaint liberally, there are no allegations of Chiefs personal involvement. Instead, it appears that the claims against Chief arise out of the alleged conduct of DPD. (Compl. at 1.) A § 1983 action based solely on a theory of respondeat superior liability is subject to dismissal. See Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990) (upholding dismissal because the plaintiff predicated his civil rights case solely on respondeat superior). Because Plaintiff has based his actions against Chief on a theory of respondeat superior liability, Plaintiff's claims against Chief fail. Consequently, the claims against Chief should also be dismissed with prejudice. Id. C. Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
Chief also argues that Plaintiff's claims are barred by res judicata. In light of the Court's conclusion that Plaintiff's claims otherwise fail, the Court need not consider this argument. See, e.g., Maple Ave. Economic Development Corp., 2002 WL 1758189, at *5 n. 3.
Judge Britten has not moved to dismiss. However, the Court may sua sponte dismiss Plaintiff's claims against Judge Britten if they are "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i) cited in Harrison v. Cockrell, 2003 WL 102447, at *2 (N.D. Tex. Jan. 6, 2003). Claims are frivolous if they lacks either an arguable basis in law or fact. Harrison, 2003 WL 102447, at *2 (citing Nietzke v. Williams, 490 U.S. 319, 325 (1989)). A claim is without an arguable basis in law if it is grounded upon an "indisputably meritless legal theory." Id. A claim lacks an arguable basis in fact if it is based on "fantastic or delusional scenarios." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Because Plaintiff is proceeding pro se, the Court construes his allegations liberally, particularly in the context of a § 1915(d) dismissal. Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
Plaintiff alleges that Judge Britten conspired to "commit capital murder" and violated his rights under the 8th and 14th Amendments to the U.S. Constitution. (Compl. at 1.) Plaintiff complains that Judge Britten fined his fiancee $400 for traffic tickets "[b]ecause of Plaintiffs [sic] civil suits against various organized criminal element in Euless, Texas." (Compl. at 1.) Plaintiff alleges that Judge Britten is also criminally responsible for "obstruction and retaliation" under Texas law. Id. Judge Britten asserted in her answer that she is absolutely immune from these claims. (Britten Ans. at 1.)
The Court construes Plaintiff's claims against Judge Britten as asserting a cause of action under § 1983. Plaintiff's claims against Judge Britten arise out of her performance of her judicial duties. Judges have absolute immunity against for acts done within the scope of their jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356 (1978). Judicial immunity extends to municipal judges. See Pierson v. Ray, 386 U.S. 547, 549, 552 (1967); Thomas v. Sams, 734 F.2d 185, 189 (5th Cir. 1984). The Fifth Circuit has delineated three elements to identify acts as being judicial in nature, and thus not in the clear absence of all jurisdiction: "(1) normal judicial functions that (2) occurred in the judge's court or chambers and were (3) centered around a case pending before the judge." Eitel v. Holland, 787 F.2d 995, 998 (5th Cir. 1986). These factors are construed liberally in favor of immunity. Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985). Under Texas law, it is the normal judicial function of a municipal judge, such as Judge Britten, to levy traffic fines. See TEX. CODE CRIM. PROC. ANN. art. 4.14; TEX. GOV'T CODE ANN. § 29.003(a). Plaintiff does not allege that Judge Britten's actions occurred outside of her chambers or court. Plaintiff also does not allege his fiancee's case was not pending before Judge Britten. Thus, according to Eitel, Judge Britten's actions were within her jurisdiction and she enjoys absolute immunity from Plaintiff's claims. Consequently, even liberally construing Plaintiff's claims against Judge Britten, they are still without an arguable basis in law and should be dismissed with prejudice as frivolous. See Krueger v. Reimer, 66 F.3d 75, 76-77 (5th Cir. 1995) (affirming dismissal of action that had found judge immune and the action thus frivolous).
Indeed, these same general types of allegations have been asserted against other judges and dismissed. See Judge Jerry Buchmeyer, No. 3:02-CV-0674-G, Mem. Ord. at 1-2, 16.
III. CONCLUSION
For the reasons above, the Court RECOMMENDS that Defendants Chief of Police and Dallas Police Department's Motion to Dismiss Under Rule 12(b) be GRANTED and that Plaintiff's case be DISMISSED with prejudice.
The Court recommends dismissal of the suit without opportunity to amend. See State of La. v. Litton Mortg. Co., 50 F.3d 1298, 1302 (5th Cir. 1995) ("We stated in Whitaker v. City of Houston [ 963 F.2d 831, 832 (5th Cir. 1992)] that, unless a district court order states expressly or by clear indication reflects the court's intention to dismiss an entire action, the order dismisses only the complaint and a plaintiff may seek leave of court to amend."); see also Maple Ave., 2002 WL 1758189, at *9 (declining to give Plaintiff an opportunity to amend because "he is engaging in vexatious litigation that should be brought to a prompt conclusion.").