Opinion
3:01-CV-211-P.
May 8, 2001
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 pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is incarcerated at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division in Iowa Park, Texas. Defendants are the Dallas Police Department, the Dallas County Sheriffs Department, and the City of Dallas. The court has not issued process in this case.
Statement of Case: The material allegations on which Plaintiff's complaint is predicated are as follows: On July 28, 1999, Plaintiff was arrested without a warrant at his residence in Richardson, Collin County, Texas. During the arrest the police officers allegedly engaged in police brutality, made racially discriminatory remarks, and used excessive force. After handcuffing Plaintiff, the police officers proceeded to search the home and to seize evidence without a warrant or consent. Following the arrest and search, Plaintiff was transported to Dallas County allegedly in violation of county jurisdictional extradition rules and confined in the Dallas County Jail under false pretense/charges and without jurisdictional authority.
The complaint alleges that the Dallas Police Department is responsible for the police brutality, racial discriminatory remarks, unlawful arrest and search procedures, and extradition-rule violation that Plaintiff endured. The complaint further alleges that the Dallas Police Department was negligent in failing to require ballistic testing of all weapons seized. Regarding the Dallas County Sheriffs Department, the complaint alleges that it is responsible for Plaintiff's false imprisonment on fabricated charges. Lastly, with respect to the City of Dallas, Plaintiff alleges that it was negligent in failing to enforce jurisdictional extradition rules.
Plaintiff seeks monetary damages and a legislative enactment reforming the search and seizure policies and requiring mandatory testing of fingerprints on all firearms confiscated by the Dallas Police Department. He further requests that the City of Dallas enact a new ordinance addressing the unlawful extradition and transportation of an arrestee from another county.
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 (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
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, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). 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, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Plaintiff names as defendants the Dallas Police Department and the Dallas County Sheriffs Department. (Complaint at 1). It is well settled that a plaintiff may not bring a civil rights claim against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991). 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. Plaintiff has failed to show that the Dallas Police Department and the Dallas County Sheriffs Department have ever been granted the capacity to sue or be sued. Thus, Plaintiff's suit seeks relief from entities that are not subject to suit under § 1983. See id. at 314.
Plaintiff further alleges the City of Dallas was negligent in failing to enforce county extradition rules. The Supreme Court has long held that negligent conduct is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); see also Marsh v. Jones, 53 F.3d 707, 712 (5th Cir. 1995). Relief for this type of injury, if any, must be sought in a state court under traditional tort law principles.
Plaintiff has failed to allege any cognizable claim for relief against the Defendants under § 1983. Therefore, his claims against the Dallas Police Department, the Dallas County Sheriff's Department and the City of Dallas should be dismissed with prejudice as frivolous, see 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i), unless within twenty days of the District Court's order Plaintiff files an amended complaint naming a defendant(s) that is (are) subject to suit under § 1983 and alleging claims that are cognizable under § 1983.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's claims against the Dallas Police Department, the Dallas County Sheriffs Department and the City of Dallas be dismissed with prejudice as frivolous, see 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i), unless within twenty days of the District Court's order Plaintiff files an amended complaint naming a defendant(s) that is (are) subject to suit under § 1983 and alleging claims that are cognizable under § 1983.
Plaintiff is placed on notice that in order to state an actionable claim under § 1983 against a governmental entity which is subject to suit, he must allege and prove that his injuries were as a result of the entity's established policies or customs. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978);Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001);Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984),cert. denied, 472 U.S. 1016 (1985).
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 to Douglass 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.