Opinion
No. 3-02-CV-0689-M
April 25, 2002
FINDINGS AND RECOMMENDATION OF TILE 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 under 42 U.S.C. § 1983. Plaintiff Leroy Harold White is an inmate in the Texas prison system. Defendant Jim Bowles is the Sheriff of Dallas County, Texas.
Plaintiff tendered an application for leave to proceed in forma pauperis and a standard complaint form used by prisoners in filing civil rights actions. The information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case. The Court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were also 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). Plaintiff filed his interrogatory answers with the district clerk on April 23, 2002. The Court now determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2)
II.
Plaintiff was arrested for unauthorized use of a motor vehicle on April 17, 2001. However, he maintains that the charge had been dismissed in July 2000. Moreover, plaintiff alleges that he was never arraigned before a judicial officer following his arrest. By this suit, plaintiff seeks immediate release from custody and unspecified monetary damages "for emotional distress and injuries that I've suffered while being illegally confined." (Plf. Compl. at 4, ¶ VI).
A.
A district court may dismiss a complaint filed in forma 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 a discredited or untenable 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, 32-33, 1125.Ct. 1728, 1733, 118 L.Ed. 340 (1992)
A civil rights complaint challenging the validity of a state criminal proceeding must be construed as an application for habeas relief under 28 U.S.C. § 2254. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983); Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979). However, a prisoner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). A state prisoner must first present the factual and legal basis of any claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See TEX. R. App. P. 202(a); TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 1999). Otherwise, the federal habeas claim is unexhausted and subject to dismissal. See Bautista v. McCotter, 793 F.2d 109, 100 (5th Cir. 1986); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983).
B.
Plaintiff alleges that he was arrested on charge that had been dismissed and was never arraigned before a judicial officer. Apparently, he blames Dallas County Sheriff Jim Bowles for his illegal confinement. However, plaintiff's claim against the sheriff fails for at least two reasons. First, a prisoner 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); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). The record clearly indicates that this determination has never been made by any court. ( Spears Quest. #1).
Plaintiff's pro se complaint alleges that the charge of unauthorized use of a motor vehicle was dismissed on July 4, 2000. (Plf. Compl. at 4, ¶ V). However, his interrogatory answers indicate that he was convicted on that same charge and sentenced to 20 years confinement. ( Spears Quest. #2).
Second, the sheriff is not personally liable for the claims made the basis of this suit. Although plaintiff alleges that the sheriff "is responsible for the requirement of deputies of staff to conduct and uphold the civil rights of the accused during the arrest and detention of the accused," the Supreme Court had held that respondeat superior does not serve as the basis for liability in a civil rights action. See Jett v. Dallas Independent School District, 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989).
To the extent that plaintiff seeks release from custody, his complaint must be construed as an application for writ of habeas corpus. Jackson, 720 F.2d at 879; Johnson, 601 F.2d at 174. However, plaintiff's underlying conviction is currently on appeal. Consequently, this claim must be dismissed for failure to exhaust state remedies. Bautista, 793 F.2d at 110.
RECOMMENDATION
Plaintiffs complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).