Opinion
1:23-CV-00496-RP
08-25-2023
PURNELL WILLIAMS, ANGELA WILLIAMS, Plaintiff v. TRAVIS COUNTY SHERIFF'S OFFICE, CITY OF AUSTIN MUNICIPAL COURT, CHRISTOPHER SHORT, PATRICK MCNELIS, TRAVIS COUNTY ATTORNEY'S OFFICE, ELIZABETH WHITED Defendants
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
ORDER AND AMENDED REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL UNITED STATES MAGISTRATE JUDGE
The undersigned submits this report and recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiffs Purnell Williams and Angela Williams's Application to Proceed In Forma Pauperis. Dkt. 2. Because Plaintiffs are requesting permission to proceed in forma pauperis, the undersigned must review and make a recommendation on the merits of their claims pursuant to 28 U.S.C. § 1915(e).
Plaintiffs initially filed their Complaint and Application to Proceed In Forma Pauperis on May 2, 2022. Dkts. 1, 2. The undersigned issued a report and recommendation recommending that the District Court grant Plaintiffs request to proceed in forma pauperis, reviewed the complaint, and recommended dismissal of all but one defendant. Dkt. 3. On May 25, 2023, during the objections period, Plaintiff's filed their First Amended Complaint adding Defendants and additional factual background covering events that occurred since the filing of the Original Complaint. Dkt. 5. The District Court then referred the First Amended Complaint for a recommendation as to whether the amended complaint should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e), 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 6, at 1.
I. REQUEST TO PROCEED IN FORMA PAUPERIS
The Court has reviewed Plaintiffs' financial affidavit and determined Plaintiffs are indigent and should be granted leave to proceed in forma pauperis. Accordingly, the Court hereby GRANTS Plaintiffs' request for in forma pauperis status, Dkt. 2. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination that the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Plaintiffs are further advised that, although they have been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, the undersigned has made a § 1915(e) review of the claims made in this complaint and is recommending that all of Plaintiffs' claims be dismissed under 28 U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the District Court's review of the recommendations made in this report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. REVIEW OF THE MERITS OF THE CLAIMS
Because Plaintiffs have been granted leave to proceed in forma pauperis, the undersigned is required by statute to review the Complaint. Section 1915(e)(2) provides in relevant part that “the court shall dismiss the case at any time if the court determines that ... 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.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327.
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Plaintiffs sue the Travis County Sherif's Office (“TCSO”), TCSO Detective Christopher Short, the City of Austin Municipal Court, Austin Municipal Court Judge Patrick McNelis, the Travis County Attorney's Office, and Assistant District Attorney Elizabeth Whited, each in their individual and official capacities for violation of: (1) 5 U.S.C. § 4101 for “defamation”; (2) 18 U.S.C. § 1961 governing racketeering; (3) 18 U.S.C. § 287 governing false, fictitious, or fraudulent claims; (4) 18 U.S.C. § 1341 governing frauds and swindles; (5) 28 U.S.C. § 3331 governing the oath of individuals elected or appointed to “an office of honor or profit in the civil service or uniformed services” within the federal government; and (6) 25 C.F.R. § 11.448 governing “abuse of office” under the U.S. Department of the Interior's regulations related to Native Americans. Dkt. 5, at 1; 28 U.S.C. § 3331. Plaintiffs also bring claims for infringement of their due process rights under the 14th Amendment to the U.S. Constitution pursuant to 42 U.S.C. § 1983. Dkt. 5, at 1, 3.
A. Background
Plaintiffs' claims arise from an arrest warrant issued for Mr. Williams for “Assault Causing Bodily Injury [to a] Family Member.” Id. at 6, 24-25. Plaintiffs allege that Detective Short's affidavit in support of the arrest warrant “falsely claims that Mrs. Williams was a victim” and has created a “false narrative” of domestic discord. Id. at 6.
Plaintiffs, who are married, had an argument at home. Id. at 4. Plaintiffs state that “Mrs. Williams became irate and struck her husband and he had to physically restrain her from attacking him.” Id. A few days later, when Mrs. Williams returned home from happy hour intoxicated and ill from excessive drinking, the couple argued about a mess Mrs. Williams created in the couple's bathroom. Id. Mrs. Williams then retrieved a legally owned firearm from the kitchen and returned to the couple's bedroom. Id. Mr. Williams states that “he immediately feared for his life and quietly exited the premises and contacted law enforcement.” Id. TCSO officers appeared at the scene and eventually removed Mrs. Williams and took her to the home of a nearby family member while Mr. Williams was allowed to reenter their home. Id. Plaintiffs state that at no point did Mrs. Williams report that she had been physically harmed by Mr. Williams and represented that she did not want to press charges against Mr. Williams. Id. at 5. Mr. Williams also told officers he did not wish to press charges against Mrs. Williams. Id.
Detective Short contacted Mrs. Williams and she repeated that she did not wish to pursue any charges against Mr. Williams because he had not physically harmed her. Id. at 5. Detective Short responded that he planned to pursue charges against Mr. Williams for assault of Mrs. Williams. Id. Mr. Williams then contacted Detective Short and informed him that he was the one who called the police, and that Mrs. Williams did not want to press charges against him “as she was the reason for the escalation.” Id.
Plaintiffs were later informed that an arrest warrant was issued for Mr. Williams. Id. at 6. Plaintiffs claim that the affidavit written by Detective Short in pursuit of the warrant “erroneously and fraudulently described secondhand information and falsified the occurrence of events to obtain a warrant for arrest for Mr. Williams” placing Mr. Williams in “false light.” Id. Plaintiffs argue that the affidavit casts Mrs. Williams as a “victim” and Mr. Williams as the aggressor, stating that “she had visible injuries.” Id. Plaintiffs do not deny that Mrs. Williams had visible injuries, but instead state that “Mrs. Williams informed the officers on the scene and [Detective Short] that her husband did not commit any of her injuries.” Id. Further, Plaintiffs state the affidavit creates the impression that Mr. Williams “has some sort of power or control over Mrs. Williams” even though Mrs. Williams never stated that she was fearful of Mr. Williams. Id. Plaintiffs state that Detective Short “acted in an unconstitutional manner” when he “proceeded with a warrant for arrest without a sworn statement from Mrs. Williams.” Id.
Detective Short's Affidavit and Application for Arrest Warrant is appended to Plaintiffs' complaint. Dkt. 5, at 25-26. It describes a physical altercation “resulting in visible injuries” on Mrs. Williams. Id. Detective Short states that based on his investigation, Mrs. Williams struck Mr. Williams who responded by “grabbing [her] hair and holding her face against the floor” resulting in bruising. Id. Detective Short states that Mr. Williams provoked his wife, and while Ms. Williams “responded to this provocation with an unlawful use of force ... [Mr. Williams] made no attempt to abandon the encounter ... but instead ... unlawfully used force against Mrs. Williams.” Id. at 14. Detective Short expressed the belief that Mr. Williams was the “predominant aggressor” and cited two prior convictions for bodily injury. Id.
Due to Detective Short's alleged disregard for Plaintiffs' wishes and the circumstances of the domestic dispute, Plaintiffs state that they have been caused “emotional injury and distress” and that Detective Short's actions have “impeded Mr. & Mrs. Williams, life, liberty and pursuit of happiness.” Id. at 7. Plaintiffs claim that Detective Short “painted each [Plaintiff] in a defamed [manner] of their actual characters.” Id.
After Plaintiffs filed their Original Complaint, Mr. Williams emailed a copy of the complaint to Detective Short “in a desperate attempt to hopefully have the warrant rescinded.” Id. In the meantime, Plaintiffs claim that they lived in fear that the warrant would be executed, and that Mr. Williams would be arrested. Id. Mr. Williams allegedly then “resorted to alcohol” and “lost control and became belligerent and irate at his daughter-in-law who was visiting along with his wife.” Id. at 8. Mr. Williams's daughter-in-law then called TCSO and “Mr. Williams was immediately arrested for the active warrant.” Id. He claims that he was incarcerated for 36 hours and learned that an emergency protective order had been put into place “per the request of [Detective Short].” Id. He claims the implementation of the emergency protective order has forcibly separated him from his wife and made him further depressed. Id. Mrs. Williams is “uncomfortable” in her new accommodations, away from Mr. Williams, and apparently lost her job because she was unable to secure transportation from her new residence. Id. at 9. Mr. Williams states that he “worked part-time through an application designed for shift work and receives a disability pension through his military service ... [but] missed two shifts due to his incarceration and has been suspended from receiving further shifts due to the two no-shows” that occurred during his 36-hour confinement. Id. at 9.
The undersigned notes that, while Plaintiffs' application to proceed in forma pauperis details the “disability pension” received through Mr. Williams's military service, Plaintiffs fail to report income received from Mr. Williams part-time shift work. See Dkt. 2. Upon filing the application, Mr. Williams signed an affidavit attesting to the following: “I declare under penalty of perjury the above answers and statements to be true and correct to the best of my knowledge. I understand that this affidavit will become an official part of the United States District Court files and that any false or dishonest answer or statements knowingly made by me in this Financial Affidavit are illegal and may subject me to criminal penalties, including any applicable fines or imprisonment, or both.” Dkt. 2, at 6. Mr. Williams has apparently admitted that Plaintiffs' application to proceed in forma pauperis was at the very least, incomplete, if not dishonest. Courts have dismissed suits with prejudice as a sanction for filing fraudulent IFP forms. See Lofton v. SP Plus Corp., 578 Fed.Appx. 603, 604-05 (7th Cir. 2014) (affirming lower court's dismissal with prejudice and stating “[p]roceeding in forma pauperis is a privilege, and courts depend on the plaintiff's honesty in assessing her ability to pay. Abusing this privilege warrants dismissal with prejudice as a sanction for lying...”).
Plaintiffs demand that Defendants “rescind the [emergency protective order] and pay $100,000 for each day that it remains in effect,” for a total of $9,000,000. Id. at 12. Plaintiffs also request that Defendants pay $1,000,000 for each of the seven claims they bring, for a total of $7,000,000. Id. For Plaintiffs “emotional, psychological, physical, and financial stress,” Plaintiffs request $10,000,000, Plaintiffs also request $100,000 for every hour Mr. Williams was incarcerated, for a total of $3,600,000. Id. Plaintiffs seek a total of $29,600,00 in compensatory damages and “punitive damages however the jury see fit to award.” Id.
B. Analysis
1. Dismissal of Defendants
a. TCSO
As an initial matter, TCSO is not a legal entity capable of being sued and is not a proper defendant. Darby v. Pasadena Police Dep't, 939 F.2d 311, 314 (5th Cir. 1991) (holding that police and sheriff's departments are governmental subdivisions without capacity for independent legal action). As a result, service should not be ordered upon TCSO, and the District Court should dismiss TCSO from this lawsuit.
b. Judge McNelis and the Austin Municipal Court
While Plaintiffs do not explicitly state the basis of their claims against Judge McNelis or the Austin Municipal Court, presumably Plaintiffs name these parties because Judge McNelis signed the arrest warrant, and the Austin Municipal Court is the court in which he sits. See Dkt. 5, at 26. To the extent Plaintiffs assert claims against the Austin Municipal Court or Judge McNelis for his activities related to the warrant, “j]udges enjoy absolute immunity from suit for acts undertaken in their judicial capacity. Wells v. Ali, 304 Fed.Appx. 292, 293 (5th Cir. 2008). Plaintiffs' claims trigger judicial immunity because they are based in conduct related to Judge McNelis's official act of signing an arrest warrant. Though the Supreme Court has outlined two exceptions to the judicial immunity doctrine, neither applies here. Mireles v. Waco, 502 U.S. 9, 10 (1991) (stating “judicial immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” (internal citations omitted)). Service should not be ordered upon the Austin Municipal Court or Judge McNelis, and the District Court should dismiss these parties from this lawsuit.
Plaintiffs attach, without explanation, copies of documents related to Judge McNelis's appointment as Travis County Assistant District Attorney from 2005 and 2009. Id. at 39-42.
c. Travis County DA's Office and ADA Whited
Plaintiffs' Amended Complaint names the Travis County District Attorney's Office and Travis County ADA Elizabeth Whited. Dkt. 5, at 1, 3. To the extent Plaintiffs bring claims against the Travis County District Attorney's Office, the Amended Complaint is defective for the same reason that justifies dismissal of the claim against the TCSO. A county district attorney's office is not a legal entity capable of suing or being sued. Johnson v. Kegans, 870 F.2d 992, 998 n.5 (5th Cir.), cert. denied, 492 U.S. 921 (1989); see also Winegarner v. City of Coppell, No. 3:05-CV-1157-L, 2006 WL 2485847, at *1 (N.D. Tex. 2006), affd, 275 F. App'x. 359 (5th Cir. 2008) (Dallas County District Attorney's Office is not a separate jural entity, and thus not subject to suit); Stephens v. Dist. Atty. of Dallas Cty., No. 3:04-CV-1700-M, 2004 WL 1857085, at *1 (N.D. Tex. 2004), report and recommendation adopted sub nom. Stephens v. Dist. Attorney of Dallas Cty., 2004 WL 1969403 (N.D. Tex. 2004) (DA's office is not a jural entity that can be sued); Hubert v. Hoel, No. 3:04-CV-2573-D, 2005 WL 3148548, at *1 (N.D. Tex. 2005), report and recommendation adopted, 2005 WL 3150234 (N.D. Tex. 2005) (same). Defendant Travis County District Attorney's Office should be dismissed from this case.
As for ADA Whited, Plaintiffs merely state she “assisted [Detective Short] in creating the affidavit” underlying the arrest warrant which “defamed” Plaintiffs' character. Dkt. 5, at 6, 10. The Affidavit and Application for Arrest attached to Plaintiffs' Complaint notes “[t]his case was staffed with ADA Whited.” Id. at 25. Plaintiffs also state that Whited “committed fraud and swindled others in law enforcement to unlawfully proceed against the Plaintiffs.” Id. at 11. Without explanation, Plaintiffs attached copies of ADA Whited's oath and documents related to her appointment. Id. at 36-37.
The Fifth Circuit has stated on numerous occasions that district attorneys and assistant district attorneys in Texas are agents of the State when acting in their prosecutorial capacities. See, e.g., Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997) (holding that a district attorney acted as a state official in using peremptory challenges during jury selection); Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (holding that the actions of a Texas district attorney within the scope of his prosecutorial function during a criminal proceeding do not constitute official policy for which a county can be held liable); Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (holding that a Texas district attorney is a state official when instituting criminal proceedings to enforce state law); cf. Crane v. Texas, 766 F.2d 193 (5th Cir. 1985) (holding that Texas district attorney acted as county official in setting county policy for the authorization of misdemeanor warrants).
District Attorney Defendants, as agents of the State, are protected by sovereign immunity with respect to their actions in handling a criminal case. Quinn v. Roach, 326 Fed.Appx. 280, 292-93 (5th Cir. 2009). Further, it is “well-settled” that historically, prosecutors were absolutely immune in their decision to initiate criminal proceedings. Imbler v. Pachtman, 424 U.S. 409, 421-24, (1976). As a result, a contemporary prosecutor's decision whether to charge a criminal defendant is protected by absolute immunity. Id. In contrast, a prosecutor's “investigative activities” are not entitled to absolute immunity because investigation was not “part of [a prosecutor's] traditional official functions.” Id. at 430.
Here, Plaintiffs have not pleaded that ADA Whited was acting outside of her capacity as a prosecutor when she “proceed[ed] against Plaintiffs.” Dkt. 5, at 11. Accordingly, claims against her for her role “staffing the case” or for allegedly “helping” Detective Short prepare the affidavit are not legally cognizable. Id. at 6, 10, 11, 25; Burns v. Reed, 500 U.S. 478, 492 (1991) (confirming protections for prosecutor when serving as an advocate in judicial proceedings and holding that appearance in court after suspect was arrested in support of application for search warrant and presentation of evidence at that hearing were protected by absolute immunity). ADA Whited should be dismissed from this case.
2. Dismissal of Claims
a. False Claims Act claims
Plaintiffs' claims under 18 U.S.C. § 287 which is the criminal provision of the False Claims Act (“FCA”) should be dismissed. Under the False Claims Act, the government itself, or a relator in a qui tam civil action, may bring a claim against “[a]ny person” who “knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a). The defendant is liable for up to treble damages and a civil penalty of up to $10,000 per claim. Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768-69, (2000). In this case, Plaintiffs are not authorized to bring an FCA action since they are not the government nor a relator in a qui tam civil action. Plaintiffs also do not allege a “false or fraudulent claim for payment or approval.”
Further, assuming Plaintiffs raise the FCA based on the alleged misrepresentations (which are not “claims” within the meaning of the statute) Detective Short made in the affidavit, those representations were made to Judge McNelis and the Austin Municipal Court. Dkt. 1, at 13-14. Judge McNelis is not alleged to be an “officer or employee” of the U.S. government, and the Austin Municipal Court is not a U.S. government department or agency. Rather, the Austin Municipal Court is the judicial branch of the City of Austin's local government system. Therefore, 18 U.S.C. § 287 is inapplicable to the allegedly false statements made by Detective Short in his affidavit. Plaintiffs' claims under 18 U.S.C. § 287 should therefore be dismissed as frivolous under 28 U.S.C. § 1915(e)(2).
b. Frauds and Swindles Claim
Plaintiffs' claims under 18 U.S.C. § 1341 should also be dismissed because that statute concerns mail fraud and criminalizes the use of the mails in furtherance of “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1341. Plaintiffs do not allege that Detective Short used the mails in an attempt to gain money or property. Therefore, pursuant to 28 U.S.C. § 1915(e)(2), the District Court should dismiss as frivolous Plaintiffs' claims under 18 U.S.C. § 1341.
c. Racketeering Claim
Plaintiffs' racketeering claim should also be dismissed. As to racketeering, Plaintiffs state that “Defendants and their corporations routinely engage in Constitutionally unlawful actions against American citizens to enrich themselves along with their respective corporations. These Defendants are complicit amongst one another, and they prey upon American citizens who are unaware of their rights primarily people of color.” Dkt. 5, at 10.
The elements of a racketeering claim are: “(1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct, or control of an enterprise.” Brown v. Protective Life Ins. Co., 353 F.3d 405, 407 (5th Cir. 2003). Plaintiff's racketeering claims, concerning “unlawful actions against American citizens ... who are unaware of their rights[,] primarily people of color” based on an allegedly falsified probable cause affidavit lacks an arguable basis in law. Pursuant to 28 U.S.C. § 1915(e)(2), the District Court should dismiss as frivolous Plaintiffs' racketeering claim.
d. Oath of Office Claim under 28 U.S.C § 3331
Presumably Plaintiffs intended to cite 5 U.S.C § 3331 for their claims related to Defendants' oath of office because 28 U.S.C § 3331 does not exist. Plaintiffs state that Defendants “have sworn an oath to uphold, protect and defend the constitution as they carry out their duties. They are public servants however they've violated their oaths by trampling upon the constitutional rights of the Plaintiffs. They have oppressed, deterred, and restricted the constitution to fulfill their state agendas. They have acted in a tyrannical manner to carry out their unconstitutional and unlawful schemes to imprison Mr. Williams.” Dkt. 5, at 12.
5 U.S.C § 3331 provides:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the
duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.5 U.S.C § 3331
5 U.S.C., titled “Government Organization and Employees,” governs the administration and conduct of the U.S. Federal Government and its employees. It is inapplicable to Plaintiffs' claims arising from the conduct of Texas state and Travis county employees. Plaintiffs “oath of office” claim, therefore, lacks an arguable basis in law and fact, is frivolous, and should be dismissed.
e. Abuse of Office Claim
Plaintiffs state that, in violation of 25 C.F.R. § 11.448, “Defendants have grossly abused the powers of their offices ... [because they have] utilized their offices to extract the freedom and liberty of the Plaintiffs without Due Process [and have interfered] with Plaintiffs' lives and have basically turned their world upside down.” Dkt. 5, at 11-12.
25 C.F.R. § 11.448 provides:
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she: (a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or (b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.25 C.F.R. § 11.448
Title 25 of the Code of Federal Regulations codifies the federal laws and regulations pertaining to American Indians and is inapplicable in this case on the basis of Plaintiffs' factual allegations concerning state and county employees' conduct related to an allegedly falsified probable cause affidavit. Plaintiffs' oath of office claim lacks an arguable basis in law and fact, is frivolous, and should be dismissed.
3. Remaining Defendant and Claims
The only remaining claims are brought against TCSO Detective Short in his individual and official capacities for defamation as well as Plaintiffs' claim pursuant to 42 U.S.C. § 1983, for violation of Plaintiffs' due process rights related to Detective Short's authorship of the probable cause affidavit supporting the warrant for Mr. Williams's arrest. Dkt. 5, at 3.
a. Official Capacity Claims
To the extent that Plaintiff sues Detective Short in his official capacity, Plaintiffs cannot state a claim for which relief can be granted. 28 U.S.C. § 1915(e)(2). An official capacity claim is merely another way of pleading an action against the entity of which the individual defendant is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). By suing Detective Short in his official capacity, Plaintiffs are actually suing TCSO. See Lowe v. Palo Pinto Cty. Sheriff's Dep't, No. 4:15-CV-285-A, 2015 WL 1781246, at *2 (N.D. Tex. Apr. 15, 2015) (noting that claims brought against jailers in their official capacity would be against their employer, the sheriff's department); Reynolds v. City of Poteet, No. SA:12-CV-01112-DAE, 2013 WL 594731, at *13 (W.D. Tex. Feb. 15, 2013) (same). As noted above, TCSO is not a legal entity capable of being sued and is not a proper defendant. See supra Part II.B.1.a (citing Darby, 939 F.2d 313-14). Accordingly, claims against Detective Short in his official capacity should be dismissed.
b. Individual Capacity Claims
Unlike official capacity suits “personal-capacity suits ... seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, ‘[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.'” Hafer v. Melo, 502 U.S. 21, 25 (1991). With respect to the two remaining claims, defamation, and alleged violation of Plaintiffs' rights related to Detective Short's affidavit, Plaintiffs have failed to state a claim pursuant to § 1983 because they have not pleaded the deprivation of a federal right.
i. Defamation Claim
Plaintiffs' lawsuit was filed pursuant to 42 U.S.C. § 1983 which states that every “person” who acts under color of state law to deprive another of constitutional rights shall be liable to the injured party. To state a claim under § 1983, a plaintiff must allege facts showing: (1) that he has been “deprived of a right ‘secured by the Constitution and the laws' of the United States,” and (2) that the deprivation was caused by a person or persons acting “under color of' state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978).
Taking Plaintiffs' complaint at face value, Plaintiffs allege that the affidavit prepared by Detective Short painted Plaintiffs in a “false light” that would lead a “reasonably minded” person to think “Mr. Williams is a violent, controlling man” and Mrs. Short “a timid and weak wife who is under the control of her husband which is far from the truth.” Dkt. 5, at 10.
Slander and libel claims are matters which the state protects by state tort law. See Geter v. Fortenberry, 849 F.2d 1550, 1556 (5th Cir. 1988). The Supreme Court has held that many acts that might constitute a violation of state tort law, like defamation, do not amount to constitutional violations. Baker v. McCollan, 443 U.S. 137, 146 (1979); see also Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). Plaintiffs' pleadings as to their defamation claim do not involve a violation of rights secured under the Constitution. Plaintiffs' § 1983 claim against Detective Short for defamation lacks an arguable basis in either law or fact since Plaintiffs cannot bring a defamation claim under § 1983. Plaintiffs' defamation claim should be dismissed.
ii. Fourth Amendment claims related to “false” affidavit
Plaintiffs' complaint next alleges a cause of action pursuant to 42 U.S.C. § 1983, for an alleged violation of Plaintiffs' due process rights. Liberally construed, this claim relies on the allegation that Detective Short deprived Mr. Williams of his due process rights by filing a false probable cause affidavit in support of an arrest warrant for Mr. Williams in violation of the Fourth Amendment's prohibition on unreasonable searches and seizures as incorporated by the Fourteenth Amendment. By virtue of its “incorporation into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.” Baker, 443 U.S. at 142. Since Franks v. Delaware, 438 U.S. 154 (1978), it has been clearly established that a defendant's Fourth Amendment rights are violated if (1) the affiant, in support of the warrant, includes “a false statement knowingly and intentionally, or with reckless disregard for the truth” and (2) “the allegedly false statement is necessary to the finding of probable cause.” Id. at 155-56.
Under the first prong of Franks, Plaintiffs must allege facts showing that Detective Short made “a false statement knowingly and intentionally, or with reckless disregard for the truth” in the arrest warrant affidavit. 438 U.S. at 155. Here, Plaintiffs pleadings fall short.Plaintiffs allege that “the false affidavit and descriptions of the events are totally inconsistent with the factual statements and wishes of Mr. & Mrs. Williams” because the affidavit represents Mr. Williams as a “violent, controlling man” and “painted Mrs. Williams as a weak, terrified individual.” Dkt. 5, at 6. Plaintiffs allege Detective Short's affidavit “claims Mrs. Williams was a victim, which she was not, and that she had visible injuries.” Id. Plaintiffs repeatedly state that they informed Detective Short that Mrs. Williams did not want to pursue charges “because her husband never harmed her physically and that she only restrained her from attacking him.” Id. at 5. These pleadings, coupled with Detective Short's affidavit stating that Mr. Williams, “held the victim's face against the floor” while he told her “to never put her hands on [him]” resulting in bruising under Mrs. Williams right eye, particularly where Plaintiffs concede Mr. Williams did restrain Mrs. Williams, do not allow the inference that Detective Short knowingly and intentionally made false statements in his affidavit as required by Franks.
Under the second prong of Franks, Plaintiffs must state that the allegedly false statements were necessary to the finding of probable cause. 438 U.S. at 156. Plaintiffs have failed to do so. Plaintiffs do not state that the alleged misrepresentations made by Detective Short were necessary to the finding of probable cause and do not contest the representations that were the crux of the probable cause finding.
Short's affidavit states that it is based on TCSO records concerning multiple visits to the couples' home and another officer's report of a “physical altercation ... resulting in visible injuries on the victim.” Dkt. 5, at 25. Detective Short goes on to state that based on phone interviews with Plaintiffs and the report from the officer present after the physical altercation, he “determined that [Mr. Williams] was upset that the Victim no longer wanted to be the point of contact with his child's mother, a task he had assigned to her, and began cursing at her, calling her a ‘stupid b****' and ‘weak.' After telling him to stop several times, the Victim approached [Mr. Williams] and struck him. [Mr. Williams] responded by grabbing the Victim's hair and holding her face against the floor for approximately 30-45 seconds. While Williams held the Victim's face against the floor, he, in his words ‘emphatically informed her, through clenched teeth, to not ever put her hands on me.'. He added that he had not allowed her to physically move during that time until, ‘I let her get up.'” Detective Short states that “[b]ased on the above investigation, Affiant has reason to believe and does believe, that Williams did then and there intentionally, knowingly, and recklessly cause bodily injury to the Victim, a member of the defendant's family, as described by Section 71.003 of the Texas Family Code, by holding the Victim's face against the floor against the floor hard enough to result in dark bruising underneath her right eye.” Id. at 42.
The misrepresentations alleged by Plaintiffs, (e.g., that Mr. Williams was a “violent, controlling man” or that Ms. Williams was a “a weak, terrified individual”) do not appear in Detective Short's affidavit and were not made by Detective Short in the affidavit. Dkt. 5, at 6. Since they do not appear in Detective Short's affidavit and are not attributable to Detective Short's own statements, Plaintiffs cannot and do not allege that the misrepresentations or allegedly false statements were “necessary to the finding of probable cause.” Franks, 438 U.S. at 156.
The crux of Detective Short's affidavit and determination that Mr. Williams did commit assault was his finding that Mr. Williams held Mrs. Williams against the floor hard enough to cause bodily injury. Plaintiffs concede that Mr. Williams “physically restrained]” Mrs. Williams and do not contest that Mrs. Williams “had visible injuries.” Dkt. 5, at 6. Plaintiffs also do not contest the portions of Detective Short's affidavit in which he reports that Mr. Williams, in his own words, “emphatically” spoke to Mrs. Williams “through clenched teeth” while he restrained her and did not allow her to get up until “[he] let her get up.” Id. at 24-25
Because Plaintiffs fail to state that the alleged misrepresentations were necessary to a probable cause finding and don't contest the sections of the affidavit that supported Detective Shorts determination that Mr. Williams did commit assault, Plaintiffs have not met the second prong of Franks. Accordingly, they do not state the facts rising to the level of alleging that their clearly established right under the Fourth Amendment was violated. Here, a claim under Section 1983 in the absence of deprivation of a clearly established right has no basis in law or fact, is not legally cognizable, and should be dismissed.
Even if Plaintiffs had met both prongs of Franks, and therefore pleaded a violation of a clearly established right under the Fourth Amendment, the arrest warrant for Mr. Williams, based on Detective Short's affidavit was signed by a judge. Dkt. 5, at 26. Under the “independent intermediary doctrine,” an officer “will not be liable [for unlawful arrest] if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary's ‘independent' decision “breaks the causal chain' and insulates the initiating party.” Buehler v. City of Austin/Austin Police Dep't, 824 F.3d 548, 554 (5th Cir. 2016) (quoting Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988)), cert. denied sub nom. Buehler v. Austin Police Dep 't, 137 S.Ct. 1579 (2017). “[E]ven an officer who acted with malice ... will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary ....” Buehler, 824 F.3d at 554 (quoting Hand, 838 F.2d at 1427). Since Plaintiffs did not plausibly allege any facts that show that Detective Short was intentionally lying or making misleading statements in order to obtain the arrest warrant from Judge McNelis, Plaintiffs have not overcome the presumption that an independent intermediary breaks the chain of causation. Accordingly, Plaintiffs have failed to allege a valid claim against Detective Short for this additional reason.
III. ORDER AND RECOMMENDATION
The undersigned hereby GRANTS Plaintiffs' Application to Proceed In Forma Pauperis, Dkt. 2.
The undersigned RECOMMENDS that Plaintiffs' claims against TCSO, the Austin Municipal Court, Judge McNelis, the Travis County District Attorney's Office, and Assistant District Attorney Elizabeth Whited be DISMISSSED WITH PREJUDICE, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A .
IT IS FURTHER RECOMMENDED that Plaintiffs' claims under the False Claims Act, for frauds and swindles, for racketeering, for abuse of office, and claims concerning Defendants' oaths of office, should be DISMISSSED WITH PREJUDICE, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A
Claims against TCSO Detective Short made against him in his official capacity should be DISMISSED WITH PREJUDICE. As to claims made against him in his individual capacity, Plaintiffs defamation claims should be DISMISSED WITH PREJUDICE and Plaintiffs claims relating to the Fourth Amendment's prohibition on unreasonable searches and seizures should be DISMISSED WITHOUT PREJUDICE.
IT IS ORDERED that the Clerk of the Court shall withhold service pending the District Court's review of the recommendations made in this report.
The referral of this case to the undersigned should now be CANCELED.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Assn, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). SIGNED July 5, 2023.