Opinion
3:20-CV-117-G (BH)
06-25-2021
TIM L. DUKE, Plaintiff, v. DALLAS COUNTY, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
By Special Order No. 3-251 , this pro se prisoner case has been automatically referred for findings, conclusions, and recommendation.
Based on the relevant filings and applicable law, the case should be DISMISSED WITH PREJUDICE.
I. BACKGROUND
Tim L. Duke (Plaintiff) sues Dallas County on grounds that he was wrongfully convicted, served his sentence, and was later exonerated. (See doc. 3 at 7; doc. 10 at 2.)
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.
Plaintiff was convicted of burglary of a habitation on May 1, 1992, and received a 25-year sentence, which he completed. (See doc. 10 at 2.) He contends that evidence in the form of the “arrest report and trial records”exonerating him existed in 1991, but this evidence was “intentionally ignored by the District Attorney Office.” (See id. at 3.) In 2016, the Dallas County District Attorney (DA) reopened Plaintiff's burglary case and obtained the arrest report and trial records, which proved his innocence. (See id. at 4.) In 2017, the DA sent her investigator to inform him that the State was going to seek to have him exonerated and released, and he was appointed an attorney for the exoneration process. (See id.) On June 27, 2018, his exoneration became final. (See id.) Plaintiff seeks compensatory damages for his allegedly wrongful incarceration. (See doc. 3; id.)
II. PRELIMINARY SCREENING
Plaintiff is an inmate who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his 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.
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 fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to “raise the right to relief above the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” nor “a formulaic recitation of the elements of a cause of action” suffice to state a claim upon which relief may be granted. Id.
III. SECTION 1983
Plaintiff sues Dallas County under 42 U.S.C. § 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). To state a § 1983 claim, a 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); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).
Municipalities, including counties, may be held liable under § 1983. Hampton Co. Nat'l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 2008). A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his or her constitutional rights. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978); Jones v. City of Hurst, Tex., No. 4:05-CV-798-A, 2006 WL 522127, at *3 (N.D. Tex. Mar. 2, 2006) (citing Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997)). It is well-settled that a municipality cannot be liable under a theory of respondeat superior, however. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing cases). “Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policy maker; an official policy; and a violation of constitutional rights whose ‘moving force' is the policy or custom.” Id. (citing Monell, 436 U.S. at 694); see also Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010); Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005). Official municipal policy includes the decisions of the government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Monell, 436 U.S. at 691-95. “Official policy” is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees,
which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policymaking authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam); accord Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Where a policy is facially unconstitutional, a plaintiff must demonstrate that it was promulgated with deliberate indifference to known or obvious consequences that constitutional violations would result. Piotrowksi, 237 F.3d at 579-80 & n.22; accord Peterson v. City of Fort Worth, 588 F.3d 838, 849-50 (5th Cir. 2009), cert denied, 562 U.S. 827 (2010). “Deliberate indifference of this sort is a stringent test, and ‘a showing of simple or even heightened negligence will not suffice' to prove municipal culpability.” Piotrowski, 237 F.3d at 579 (citation omitted) (stressing that “Monell plaintiffs [need] to establish both the causal link (‘moving force') and the City's degree of culpability (‘deliberate indifference' to federally protected rights)”).
“The description of a policy or custom and its relationship to the underlying constitutional violation...cannot be conclusory; it must contain specific facts.” Spiller v. City of Texas City, Police Dept's, 130 F.3d 1662, 167 (5th Cir. 1997) (citing Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)); accord Piotrowski, 237 F.3d 578-79. “[A] complaint must contain either direct allegations on every material point necessary to sustain recovery...or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (citation omitted). In Spiller, for example, the Fifth Circuit found the allegation that “[an officer] was acting in compliance with the municipality's customs, practices, or procedures” insufficient to plead municipal liability. Spiller, 130 F.3d at 167. It also found that an assertion that several policies “led to” unspecified “unconstitutional arrests and confinements, ” and that a departmental policy of “engag[ing] in conduct toward African American citizens without regard to probable cause to arrest” were too vague and conclusory to support alleged municipal liability under Monell. Id.
Here, Plaintiff does not allege the existence of a Dallas County custom or policy that led to his allegedly wrongful incarceration-much less one promulgated with deliberate indifference to “known or obvious consequences” that constitutional violations would result. See Brown, 520 U.S. at 407. In fact, he does not claim that the alleged violation of his constitutional rights was the result of a policy or custom of Dallas County. (See doc. 10 at 6.) Nor has he identified a policy maker with actual or constructive knowledge of an unconstitutional policy. This failure to include “direct allegations on every material point necessary to sustain recovery” is fatal here, as there are no allegations from which it may be inferred that “evidence on these material points will be introduced at trial.” See Campbell, 43 F.3d at 975. Because Plaintiff has alleged no facts showing a policy maker, an official policy, and a violation of constitutional rights whose moving force is the policy or custom, he fails to state a claim against Dallas County. See Valle, 613 F.3d at 541-42.
Plaintiff clarified his claims through a response to a Magistrate Judge Questionnaire. (See doc. 10). Responses to these questionnaires become part of the pleadings. See Swaringen v. Bell, 2019 WL 2870951, at *3 (N.D. Tex. June 13, 2019) (citation omitted), rep. and rec. adopted, 2019 WL 2869825 (N.D. Tex. July 3, 2019).
V. OPPORTUNITY TO AMEND
The Fifth Circuit is inclined to give pro se plaintiffs several opportunities to state a claim upon which relief can be granted. See Scott v. Brynes, No. 3:07-CV-1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). Courts therefore typically allow pro se plaintiffs an opportunity to amend their complaints when the action is to be dismissed pursuant to a court order. See Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at *2. Nonetheless, a court need not give an opportunity to amend where the court finds that the plaintiff has alleged his or her best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1997).
Here, because Plaintiff has already been afforded the opportunity to clarify his claims and allege his best case through his responses to a questionnaire, leave to amend is not necessary or warranted. See, e.g., Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (affirming the district court's dismissal with prejudice where the pro se plaintiff's response to the questionnaire showed that he had pleaded his best case); Cobb v. Simmons, 373 Fed.Appx. 469, 470 (5th Cir. 2010) (affirming dismissal with prejudice where pro se plaintiff's questionnaire responses and objections to magistrate judge's recommendation showed he had pleaded his best case).
VI. RECOMMENDATION
Plaintiff's claims should be DISMISSED with prejudice for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). This dismissal will count as a “strike” or “prior occasion” within the meaning of 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the “three-strikes” provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
SO RECOMMENDED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will 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. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).