Opinion
3:01-CV-1173-G.
August 31, 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 presently confined at the Connally Unit of the Texas Department of Criminal Justice — Institutional Division in Kenedy, Texas. Defendants are Judge Molly Francis, of the 283rd Criminal District Court in Dallas County, Texas; Dennis Jones and Liz Miller, Dallas assistant district attorneys; John Vance, supervisory assistant district attorney; Bill Roberts, Plaintiff's trial counsel; Kris Weaver, Plaintiff's appellate counsel; and Libra Lange, Dallas appellate assistant district attorney. The court has not issued process in this case.
Statement of Case: The material allegations on which the complaint is predicated stem from Plaintiff's prosecution and subsequent conviction in the 283rd Criminal District Court, Cause No. F94-03949. Plaintiff complains of events that occurred at trial, on direct appeal, as well as during state post-conviction proceedings. Specifically he alleges that Judge Francis conspired with his trial and appellate attorneys, Defendants Roberts and Weaver. She allegedly allowed Roberts to evade answering the allegations of ineffective assistance of counsel raised in the habeas corpus application brought pursuant to art. 11.07, Texas Code of Criminal Procedure; she allegedly accepted an incomplete affidavit from Roberts in response to the art. 11.07 application; and she allegedly failed to permit Plaintiff "to be heard" on his art. 11.07 application. Regarding Weaver, Plaintiff contends that Judge Francis did not require him to answer the claim of ineffective assistance of appellate counsel raised in the art. 11.07 application. Plaintiff further contends that Judge Francis did not dismiss tainted evidence and did not review the police report thoroughly. (Complaint at ¶ V and handwritten attachment at 1-3)
In addition to Judge Francis and his trial and appellate counsels, Plaintiff sues the prosecutors involved at his trial (Defendants Miller and Jones), their supervisor (Defendant Vance), as well as the State appellate attorney (Defendant Lange). He alleges that Miller and Jones lied to the jury about the police report and that Vance did not prevent them from committing any constitutional violations during Plaintiff's trial. With regard to Lange, Plaintiff asserts that Lange conspired with Jones and Miller to present to the court of appeals perjured testimony and the wrong facts and incorrect course of events. (Id.).
The complaint requests compensatory and punitive damages against all Defendants as well as an order permitting Plaintiff to resubmit his art. 11.07 application. (Complaint ¶ VI)
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(a) and (b) (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 that 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).
The complaint requests inter alia an order directing the state court, in particular Judge Francis, to accept and consider a new art. 11.07 application. Federal courts are without power to issue writs of mandamus against state courts and state officers in the performance of their duties where mandamus is the only relief sought. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997); Move v. Clerk. DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). Therefore, to the extent Plaintiff requests the issuance of a writ of mandamus, this court lacks jurisdiction to do so. See Santee, 115 F.3d at 357 (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties).
In addition to mandamus-type relief, Plaintiff requests compensatory and punitive damages against the defendants named in the complaint. Judge Francis, however, is absolutely immune from any claim for monetary damages. The alleged conduct of Judge Francis occurred in the performance of the judge's judicial functions. It is well settled that "[j]udicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial discretion." Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); see also Krueger v. Reimer, 66 F.3d 75, 76-77 (5th Cir. 1995) (per curiam); Graves v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993), abrogated on other grounds by Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994). "A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors." Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978); Brandley v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995), cert. denied, 516 U.S. 1129 (1996)
A plaintiff can only overcome judicial immunity by demonstrating that the jurist's actions are of a nonjudicial nature or that the jurist acted in the complete absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991). The Fifth Circuit utilizes the following four-part test to determine if an act is judicial in nature:
(1) the act complained of is a normal judicial function,
(2) the events occurred in the judge's court or in his chambers,
(3) the controversy centered around a case then pending before the judge, and
(4) the confrontation or occurrence arose directly and immediately out of a visit to the judge in his or her judicial capacity.Society of Separationists v. Herman, 939 F.2d 1207, 1217 (5th Cir. 1991); rehearing en banc, 959 F.2d 1283 (1992) (affirmed in relevant part, but prospective relief denied for lack of standing), cert. denied, 506 U.S. 866 (1992); Brewer, 692 F.2d at 396-97.
In the instant case Judge Francis' actions — in permitting Plaintiff's trial and appellate attorneys to evade answering the allegations raised in the art. 11.07 application, in refusing to permit Plaintiff "to be heard" on the art. 11.07 application, in failing to dismiss tainted evidence, and in failing to review the police report thoroughly — were of a judicial nature. The pleadings reflect that the actions in question were normal judicial functions, the controversy centered around a case then pending before the judge — i.e., an art 11.07 application in Cause No. W94-03949 —, and the occurrence arose directly and immediately from events involving Judge Francis in her judicial capacity. "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority. . . .'" Stump v. Sparkman, 435 U.S. at 356-57, 98 S.Ct. at 1105 (quoted case omitted). Moreover, "[d]isagreement with the action taken by a judge . . . does not justify depriving that judge of his immunity," nor does the fact that tragic consequences ensue from the judge's action deprive him of his absolute immunity." Id. at 363-64, 98 S.Ct. at 1108-09.
Under the above analysis, Judge Francis retained absolute immunity even in the face of the allegations that she conspired with Roberts and Weaver during the post-conviction proceedings.See Brandley, 64 F.3d at 201 (state trial judge did not exceed reasonable bounds of his judicial role in capital murder prosecution, so as to lose judicial immunity, by allegedly accompanying prosecutor and court clerk to city dump to retrieve evidence that he believed had been disposed of); Young v. Biggers, 917 F.2d 873, 877 (5th Cir. 1990), on reh'g, 938 F.2d 565, 569 n. 5 (5th Cir. 1991) (judge was absolutely immune from claim that he framed plaintiff for robbery); Freeze v. Griffith, 849 F.2d 172, 174 (5th Cir. 1988) (judge was absolutely immune from claim that he conspired with others to suppress exculpatory evidence.).
Any claims for monetary damages against Assistant District Attorneys Jones, Miller and Lange are also barred by the doctrine of absolute immunity. A district attorney is absolutely immune in a civil rights suit for any action taken pursuant to his/her role as prosecutor in preparing for the initiation of judicial proceedings and in presenting the State's case. See Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 506-509, 139 L.Ed.2d 471 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir.), cert. denied, 522 U.S. 828 (1997). Prosecutorial immunity extends to conduct in handling a direct appeal. See Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979); see also Parkinson v. Cozzolino, 238 F.3d 145, 151-52 (6th Cir. 2001) (collecting cases). "Fear of civil liability could hinder a prosecutor's judgment in conducting a case at the appellate level as well as at the trial level."Henzel, 608 F.2d t 657.
Plaintiff's claims against Jones, Miller and Lange are based on actions taken in their role as prosecutors during trial and on appeal. Specifically Plaintiff alleges that Jones and Miller lied to the jury about the police report and that Lange conspired with Jones and Miller to present to the court of appeals the wrong facts and incorrect course of events. Lange also failed to prevent the use of perjured testimony against Plaintiff during the appellate process. Because the above actions were taken in Jones, Miller and Lange's role as State advocates in obtaining a conviction at trial and in seeking an affirmance of the conviction on appeal, they are entitled to absolute prosecutorial immunity. See Imbler, 424 U.S. at 430, 96 S.Ct. at 995 (absolute immunity protected prosecutor from civil suit for knowingly using perjured testimony and suppressing material evidence at the plaintiff's murder trial);Brandley, 64 F.3d at 201 (prosecutor was entitled to absolute judicial immunity from suit, even if he knew of and directed intimidation of witnesses and suppressed other important evidence).
Plaintiff's claim against John Vance, supervisory district attorney, fares no better. The complaint alleges that Vance did not adequately supervise Jones and Miller. In particular, the complaint states that he failed to prevent Jones and Miller from lying to the jury. Any claim against Vance in his supervisory capacity lacks an arguable basis in law. A supervisory official cannot be held vicariously liable for their subordinates' actions under § 1983. 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); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.),cert. denied, 488 U.S. 851 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). A supervisory official may be held liable only if he (i) affirmatively participate in acts that cause constitutional deprivation, or (ii) implement unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987). Plaintiff's complaint, even when liberally construed, does not allege any facts in support of either of the above elements. Moreover, since Vance's supervision over other assistant district attorneys related to their functions as prosecutors, he is likewise entitled to prosecutorial immunity.
Next Plaintiff sues his trial and appellate counsels. To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by the defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988).
As trial and appellate counsels, neither Roberts nor Weaver acted under color of state law for purposes of § 1983 liability. It is well established that neither appointed nor retained counsel acts under color of state law in representing a defendant at trial or on direct appeal. See Polk County v. Dodson, 454 U.S. 312, 324, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law), cert. denied, 479 U.S. 826 (1986).
Plaintiff's claims against Roberts and Weaver may present possible cognizable claims for relief in a habeas corpus petition brought pursuant to 28 U.S.C. § 2254.
Plaintiff also raises civil conspiracy claims. Specifically he alleges that Judge Francis conspired with Roberts and Weaver during the post-conviction proceedings. Plaintiff also alleges that Jones and Miller conspired with Lange to seek an affirmance of Plaintiff's conviction on direct appeal. These claims lack an arguable basis in law. A claim for civil conspiracy requires allegations of facts sufficient to show that there was an agreement among the defendants to inflict a wrong or injury upon the plaintiff and an overt act that results in damages. Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979). In the present case, no allegations exist that would allow inference that Defendants conspired to deprive Plaintiff of his constitutional rights. Liberally construed the complaint does not contain allegations sufficient to show an agreement between any of the Defendants named in the complaint. See Hale v. Hamey, 786 F.2d 688, 690 (5th Cir. 1986). Nor does Plaintiff allege that the Defendants ever met or talked about Plaintiff's proceedings. There is a complete absence of any allegation of fact showing that the Defendants had any plan to hinder Plaintiff's direct appeal or his post-conviction proceeding. "`Mere conclusory allegations of conspiracy cannot, absent reference to material facts,' state a substantial claim of federal conspiracy under 42 U.S.C.A. § 1983." Id. (quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)).
Moreover, Judge Francis' failure to require Weaver to file a response to the art. 11.07 application does not raise a federal claim. Errors in state collateral proceedings do not raise a federal constitutional claim. See. e.g., Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999) ("[E]rrors in state post-conviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief"); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir.), cert. denied, 522 U.S. 1003 (1997) ("[I]nfirmities in state habeas proceedings do not constitute grounds for relief in federal court."); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) ("An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.") (internal quotations omitted); Tijerina v. Estelle, 692 F.2d 3, 6 n. 2 (5th Cir. 1982) (abuse of discretion in state habeas proceeding does not implicate constitutional protections).
Plaintiff's complaint fails to allege any cognizable claim for relief against the named defendants under § 1983. The District Court lacks mandamus jurisdiction to order the State court to accept and consider any new art. 11.07 application. Moreover Judge Francis and Assistant District Attorneys Jones, Miller and Lange are absolutely immune from any claim for monetary damages. Plaintiff's claims against Roberts, Weaver and Vance also lack an arguable basis in law. Therefore, the complaint should be dismissed with prejudice as frivolous and for seeking monetary relief against defendants who are immune from such relief. See 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii). RECOMMENDATION:
Under other circumstances, where the complaint alleges a colorable claim, a federal court would be required to applyHeck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, in this instance under the allegations alleged the named Defendants are either absolutely immune or the complaint fails to allege a constitutional violation or color of state law. Thus, the court need not address Heck. The Fifth Circuit Court of Appeals has approved this approach. See Littles v. Bd. of Pardons Paroles Div., 68 F.3d 122, 122 (5th Cir. 1995) (per curiam) ("Even if a complaint is subject to dismissal under Heck it remains appropriate for district courts to resolve the question of immunity before reaching theHeck analysis."); Krueger v. Reimer 66 F.3d at 76 (holding that despite applicability of Heck, district court may consider doctrine of absolute immunity as threshold matter in making 28 U.S.C. § 1915(d) frivolousness determination).
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous and for seeking monetary relief against defendants who are immune from such relief See 28 U.S.C. § 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).
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.