Opinion
NO. 3-03-CV-2145-G
November 12, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to U.S. Magistrate Judge Jeff Kaplan for initial screening and pretrial management pursuant to 28 U.S.C. § 636(b) and an order of reference dated September 23, 2003. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil rights action brought by Plaintiff Lonnie Charles Chalmers against: (1) the University of Texas at Dallas ("UTD"); (2) Colleen L. Ridge, UTD Chief of Police; and (3) Larry Wilson, UTD Director of Human Resources. On September 22, 2003, plaintiff tendered a complaint to the district clerk and filed an application for leave to proceed in forma pauperis Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this action, the court granted leave to proceed in forma 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 this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Although plaintiff responded to the interrogatories, his answers were inconclusive. On November 12, 2003, the court held a Spears hearing to investigate the factual basis of the complaint in more detail. The court now determines that this case is frivolous and should be dismissed under 28 U.S.C. § 1915(e)(2).
This is the eighth lawsuit filed by plaintiff in the past three years challenging certain aspects and collateral consequences of his 1996 conviction for sexual assault of a child. Five cases have been dismissed. Chalmers v. Carter, No. 3-00-CV-0936; Chalmers v. Wilhelm, No. 3-01-CV-0153; Chalmers v. Gavin No. 3-01-CV-0528; Chalmers v. Davis, No. 3-02-CV-0488; Chalmers v. Cobb, No. 3-03-CV-l 142. Three other cases remain pending. Chalmers v. Gavin, No. 3-02-CV-2534; Chalmers v. Marks, No. 3-03-CV-0468; Chalmers v. Lane, No. 3-03-CV-1268.
II.
In September 1996, plaintiff pled guilty to sexual assault of a child, a second degree felony, in 1996. The trial court imposed a five-year prison sentence, but suspended the prison term and put plaintiff on probation with community supervision for five years. Plaintiff successfully completed the community supervision component of his sentence and received an early discharge on March 31, 2000. The order discharging plaintiff provides that "the indictment or information is dismissed, and the defendant is released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted, except as provided in Article 42.12, Section 20, Texas Code of Criminal Procedure." See St. Court Order, 3/31/00.
On July 25, 2003, plaintiff was appointed as a Research Assistant in the UTD School of Social Sciences. ( See Plf. App., Exh. 3). However, the appointment was revoked after a criminal background check revealed his 1996 conviction for sexual assault of a child. ( Id., Exh. 2). Although initially convicted of this offense, plaintiff maintains the conviction is no longer valid under state law because the indictment was dismissed upon his completion of community supervision. Plaintiff therefore believes he was terminated without cause and in violation of his right to due process. He sues for monetary damages and injunctive relief.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28U.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, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). A complaint that duplicates claims asserted in an earlier case may be deemed malicious and dismissed on that basis. See Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 110 S.Ct. 417 (1989).
B.
The gravamen of plaintiff's complaint is that defendants violated his civil rights by revoking his appointment as a research assistant based on criminal conviction that no longer exists. This claim is without an arguable basis in law for two reasons. First, the only defendants named in the complaint are UTD, Police Chief Colleen L. Ridge, and Human Resources Director Larry Wilson. UTD, a state university, is immune from suit for money damages under the Eleventh Amendment to the United States Constitution. Chalmers v. Johnston, 2003 WL 22425030 at *2 (N.D. Tex. Oct. 22, 2003) (citing cases). Ridge and Wilson, who supervise their respective departments within the University, are not liable for the actions of their subordinates under 42 U.S.C. § 1983. See Jett v. Dallas Independent School District, 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 104 S.Ct. 248 (1983) (personal involvement is an essential element in civil rights cause of action). As supervisors, these defendants are liable only if: (1) they affirmatively participate in acts that cause a constitutional deprivation; or (2) implement unconstitutional policies that result in injury to the plaintiff. Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993). At the Spears hearing, plaintiff conceded that he was unaware of any personal involvement on the part of Ridge or Wilson. Instead, plaintiff testified that erroneous information about his conviction was passed on to UTD hiring officials by unknown Police Department and Human Resources employees. Such vague allegations are insufficient to state a claim against these defendants in their individual capacities.
The final decision to revoke plaintiffs appointment was made by Euel Elliott, Associate Dean for Graduate Education, who is not a defendant in the case. ( See Plf. App., Exh. 2).
The court further determines that plaintiff has failed to allege a federal constitutional violation arising out of the decision to revoke his appointment as a research assistant. Plaintiffs entire case is predicated on his mistaken belief that the order discharging him from community supervision had the effect of setting aside his conviction. Under Texas law:
At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon satisfactory fulfilment of the conditions of community supervision, and the expiration of the period of community supervision, the judge by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who thereafter shall be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty . . .
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20 (Vernon 1999) (emphasis added). As this statute makes clear, discharging the defendant from community supervision does not automatically vacate his conviction. Rather, the judge may enter an order setting aside the conviction or allowing the defendant to withdraw his guilty plea. See United States v. Sauseda, 2001 WL 694490 at *2 (W.D. Tex. Jan. 10, 2001); State v. Cuellar, 70 S.W.3d 815, 820 (Tex.Crim.App. 2002) (only a person whose conviction is set aside under article 42.12, § 20 is not a convicted felon). No such order was entered in this case. Because plaintiff still stands convicted of a sexual offense, UTD officials were justified in revoking his appointment.
The court also disagrees with plaintiffs interpretation of University policy governing criminal background checks. Contrary to plaintiffs argument, this policy does not disqualify only those potential applicants who have been convicted of a criminal offense. Rather, the policy provides:
If the results of an applicant's criminal history record information investigation indicate that the applicant may be a security risk, the hiring official may, at his or her discretion, consult with the Chief of Police, the Director of Human Resources, and/or the appropriate Vice President about the risk. However, it is the responsibility of the hiring official to evaluate the risk and make the final hiring decision. The evaluation should be based on such factors as the duties of the position, the nature and number of offenses, the dates of the offenses, employment and rehabilitation history, accuracy of the information on the employment application, and other job-related factors.
UTD Admin. Pol. amp; Proc. Manual at D2-115.0.1-2 (Sept. 17, 2003).
RECOMMENDATION
Plaintiffs complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).