Opinion
NO. 3-03-CV-0958-P.
July 18, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought by Plaintiff Christopher Tidline, an inmate in the Dallas County Jail, against Officer M. Jones and other unnamed Dallas police officers. On May 6, 2003, plaintiff tendered a pro se complaint to the district clerk and filed an application for leave to proceed informa pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the finds necessary to prosecute this case, the court granted leave to proceed informa pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on June 17, 2003. The court now determines that this action is frivolous and should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).
II.
Plaintiff alleges that he was subjected to the use of excessive force by Officer M. Jones and other unnamed Dallas police officers on January 4, 2003. At the time, the officers were attempting to arrest plaintiff for an unspecified offense. Although plaintiff admits to running from the police, he denies using any physical force against the officers. Nevertheless, plaintiff was arrested and charged with assault on a public servant, a third degree felony. He is currently incarcerated awaiting trial on that charge. By this suit, plaintiff seeks unspecified money damages and to "have the truth revealed that these officer[s] were in fact `in the wrong' for beating me." (Plf. Compl. at 4, ¶ V).
Plaintiff admits that he failed to present identification, evaded arrest, and was wrong for running from the police. However, he vehemently denies striking Officer Jones at any time during their encounter.
A.
A district court may dismiss a complaint filed informa pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiff's excessive force claim must be analyzed under the "reasonableness" standard of the Fourth Amendment to the United States Constitution. U.S. CONST. amd. IV; Graham v. Conner, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). In order to establish a constitutional violation, plaintiff must show that: (1) he suffered a significant injury; (2) resulting directly and only from the use of force that was clearly excessive to the need for force; and (3) the force used was objectively unreasonable. See Goodson v. City of Corpus Christi, 202 F.3d 730,740 (5th Cir. 2000). The court must view the totality of circumstances from the standpoint of a reasonable officer on the scene, paying particular attention to "whether the suspect pose[d] an immediate threat to the safety of the officers or others." Stroik v. Ponseti, 35 F.3d 155, 157-58 (5th Cir. 1994), cert. denied, 115 S.Ct. 1692 (1995), citing Graham, 109 S.Ct. at 1872.
The facts alleged by plaintiff in his complaint and interrogatory answers are sufficient to state an excessive force claim against Officer Jones. However, a party may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or federal habeas court has determined that the terms of confinement are in fact invalid. Heck v. Humphrey, 512 U.S. 477, 487,114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). The critical inquiry is whether ajudgment in favor of the plaintiff would "necessarily imply the invalidity of his conviction or sentence." Id., 114 S.Ct. at 2372. If so, the claim is barred unless the conviction has been reversed or declared invalid. Id.; Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000).
Because the federal rules make no provision for joining fictitious defendants in an action under a federal statute, the unnamed Dallas police officers are not proper parties to this suit. See Vollmer v. Bowles, 1997 WL 102476 at *2 (N.D. Tex. Feb. 28, 1997) (Fitzwater, J.), citing Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956).
Plaintiff is currently awaiting trial for assault on a public servant. Under Texas law, the use of force to resist an arrest or search is justified only if, inter alia, "before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search . . ." TEX. PENAL CODE ANN. § 9.31(c) (Vernon Supp. 2003) (emphasis added). See also Darty v. State, 994 S.W.2d 215, 218 (Tex.App.-San Antonio 1999, pet. refd). The Fifth Circuit addressed a factually similar situation in Sappington v. Bartee, 195 F.3d 234, 236 (5th Cir. 1999). The plaintiff in Sappington sued several police officers for use of excessive force in making an arrest. Plaintiff admitted that he had physical contact with the defendants, but only after he had been beaten by the officers and sprayed with mace. Defendants argued that plaintiff's excessive force claim was barred by Heck because he was subsequently convicted of assaulting a peace officer. The court agreed. Although recognizing that plaintiff might have a viable claim if he offered some resistance before the defendants used force against him, the court held that "this theoretical situation . . . is completely at odds with the summary judgment record." Id. at 236. Since plaintiff offered no resistance before the use of force, he was entitled to raise the defense of self-defense to the criminal charge. Under these circumstances, plaintiff's excessive force claim necessarily implied the invalidity of his criminal conviction. Id. See also Page v. Williams, 2002 WL 31780865 at *3 (N.D. Tex. Dec. 5, 2002) (Kaplan, M.J.).
This provision applies to assault offenses under Section 22.01 of the Texas Penal Code. See Salinas v. State, 687 S.W.2d 67, 68 (Tex.App.-Corpus Christi 1985).
The same is true in this case. Here, plaintiff was charged with assaulting Officer Jones. By his own admission, plaintiff offered no resistance before Jones allegedly beat him. In fact, plaintiff maintains that he offered no resistance at any time. These facts, if proved, may give rise to a claim of self-defense in the assault case. See Letson v. State, 805 S.W.2d 801, 805 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (defendant required to show excessive force on part of police officer before justification of self-defense is available). As such, plaintiff's excessive force claim against Jones is barred by Heck.
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of plaintiff's pro se civil rights complaint in the above styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).