Opinion
3:03-CV-1862-P
September 17, 2003
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 brought by an individual pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff presently resides in Irving, Texas. Defendants are Ashlan Hawkins, Deputy Clerk Mark Lance, Assistant District Attorney Shelley Grizzaffi, Chanele Groose, and Bailiffs Jerry Balderas, Mike Parnell, Pam Hopkins, Lt. Williams, Sgt. Bailey, David Milhorn, and Jerry Valladarez. The court has not issued process in this case. However, on August 26, 2003, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers thereto on September 4, 2003.
Statement of Case: In late 2002 Plaintiff was charged with the offense of indecency with a child in the 265th Judicial District Court, Dallas County, Texas, No. F02-55593. Although he did not forfeit his bond, and appeared as ordered, Plaintiff alleges that Clerk Mark Lance had him arrested for failure to appeal on January 30, 2003, inside the courtroom. Seven bailiffs allegedly wrestled Plaintiff to the ground and physically beat him before they could place him under arrest. Plaintiff sustained injuries to his lower back and right wrist as a result of the excessive use of force. A jury acquitted Plaintiff of the indecency charge following a jury trial on August 12, 2003. He was released from custody the next day.
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. § 1915(e)(2)(B), which imposes a screening responsibility on the district court. Section 1915(e)(2)(B) reads in pertinent part as follows:
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.
Section 1915(e)(2)(B) provides 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 (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 which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Plaintiff seeks to recover monetary damages for defamation of character against Ashlan Hawkins, the victim of the alleged sexual assault charge, and Chanele Groose, the victim's mother. (Answer to Question 10 of the Magistrate Judge's Questionnaire). Insofar as Ms. Hawkins and Ms. Groose's testimony at trial defamed plaintiff's character, both witnesses are entitled to absolute immunity for their trial testimony. See Briscoe v. LaHue, 460 U.S. 325 (1983) (holding that witnesses are entitled to absolute immunity from suit under 42 U.S.C. § 1983 for their trial testimony). Even if not barred by absolute immunity, plaintiff's defamation claim is not cognizable under § 1983. Allegations of an injury solely to a plaintiff's reputation are insufficient to establish liability for a civil rights violation under § 1983. See, e.g., Paul v. Davis, 424 U.S. 693, 711-12 (1976) (interests in reputation alone do not implicate a "liberty" or "property" interest sufficient to invoke due process protection under § 1983); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (same); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) (injury to reputation as a result of libel or slander in false prison reports, does not give rise to § 1983 liability).
Any claim for monetary damages against Assistant District Attorney Shelley Grizzaffi is 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, 129 (1997);Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir. 1997).
Plaintiff's claim against Ms. Grizzaffi is based on a statement she allegedly made during trial, which Plaintiff contends violated his constitutional rights. (Answer to Question 9). Because the above conduct was taken in Ms. Grizzaffi's role as the State's advocate, she is entitled to absolute prosecutorial immunity. See Imbler, 424 U.S. at 430 (absolute immunity protected prosecutor from suit for knowingly using perjured testimony and suppressing material evidence at plaintiff's murder trial).
The only relief, which Plaintiff seeks in this action against Clerk Mark Lance is that criminal charges be brought against him for obstruction of justice. (Answer to Question 10). Insofar as he requests that the Mr. Lance be prosecuted under state law for falsely charging him with failure to appeal, his claim has no basis in law. No one has a constitutional right to have charges filed against a third person.Oliver v. Collins, 904 F.2d 278, 280-81 (5th Cir. 1990).
Accepting as true plaintiff's allegations as to the force used by the seven bailiffs during his arrest inside the courtroom on January 30, 2003, the Magistrate Judge concludes that Plaintiff has arguably raised a claim for excessive use force in violation of the Fourth Amendment.See Graham v. Connor, 490 U.S. 386, 395 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard"). plaintiff's allegations that the bailiffs grabbed him, wrestled him to the ground, and placed their knees in his back, neck and arm, viciously pressing down to the point where he could not breath and causing injury to his lower back and right wrist, raise a claim that the force used may have been excessive to the need and objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (setting out the elements of an excessive force claim). Therefore, plaintiff's claim of excessive use of force is not subject to dismissal at the screening stage. RECOMMENDATION:
For the foregoing reasons, it is recommended that plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), except for his claim of excessive use of force against Bailiffs Jerry Balderas, Mike Parnell, Pam Hopkins, CJ Williams, Sgt. Bailey, David Milhorn, and Jerry Valladarez for which service of process should be issued.
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 toDouglass 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.