Opinion
Civil Action 22-209-SDD-RLB
11-10-2022
JA'UAN T. SWANSON #501719 v. BEAU HIGGINBOTHAM, ET AL.
NOTICE
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The pro se plaintiff, an inmate confined at the Raymond LaBorde Correctional Center, Cottonport, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Judge Beau Higginbotham, District Attorney Hillar C. Moore, III, and Attorney Gail Horne Ray, complaining that his constitutional rights were violated in connection with a state criminal proceeding. The plaintiff requests that his convictions be vacated, and monetary and injunctive relief.
Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an action or claim brought by a prisoner who is proceeding in forma pauperis or is asserting a claim against a governmental entity or an officer or employee of a governmental entity if satisfied that the action or claim is frivolous, malicious, or fails to state a claim upon which relief may be granted. An action or claim is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is factually frivolous if the alleged facts are “clearly baseless, a category encompassing allegations that are ‘fanciful,' ‘fantastic,' and ‘delusional.'” Id. at 32-33. A claim has no arguable basis in law if it is based upon an indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to dismiss a claim which is based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the factual allegations. Denton v. Hernandez, supra, 504 U.S. at 32. Pleaded facts which are merely improbable or strange, however, are not frivolous for purposes of § 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be made any time, before or after service or process and before or after an answer is filed, if the court determines that the allegation of poverty is untrue; or the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) and Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
In his Complaint, the plaintiff alleges that his criminal prosecution was untimely due to the actions/inactions of the defendants. Defendants refused to dismiss the charge, the plaintiff was convicted, and then received a harsh sentence.
First, with regards to defendant Attorney Gail Ray Horne, to state a claim under Section 1983, a plaintiff must allege that a defendant acted “under color” of state law. 42 U.S.C. § 1983. “Anyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “Fair attribution” means: (1) “the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible”; and (2) “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar, 457 U.S. at 937. Of import, “a 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 proceeding.” Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).
In the instant matter, Defendant Horne did not act under color of state law. See Ellison v.De La Rosa, 685 F.2d 959, 960 (5th Cir. 1982) (finding, where the plaintiff alleged that his counsel was ineffective “for allowing two fundamentally defective indictments to be prosecuted against him,” that counsel was performing a lawyer's traditional function); Amir-Sharif v. DallasCty. Pub. Defs. Office, 233 Fed.Appx. 364, 365 (5th Cir. 2007) (finding, where a plaintiff was concerned with the “quality of legal assistance being provided to him by appointed counsel and the public defender[,]” that “the attorney defendants ... are not state actors for § 1983 purposes.”); Linn v. Saitin, 575 Fed.Appx. 531, 532 (5th Cir. 2014) (affirming, where the plaintiff alleged that a public defender and her supervisor rendered ineffective assistance, that the defendants were not state actors).
To the extent the plaintiff accuses Horne of conspiring with defendants Higginbotham and Moore, the plaintiff has failed to show an agreement between defendant Horne and any state actor. Rather, the actions of Horne appear to be those within a lawyer's traditional functions as counsel to a defendant in a criminal proceeding. See Linn v. Saitin, 575 Fed.Appx. 531, 532 (5th Cir. 2014 (rejecting the plaintiff's argument that his counsel acted in concert with the prosecution because the plaintiff “made only generalized allegations of concerted action, which [were] insufficient to establish the existence of a conspiracy.”); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (a plaintiff's “mere characterization” of a defendant's conduct “as conspiratorial or unlawful [does] not set out allegations upon which relief can be granted.”); Miller v. Graham, 447 Fed.Appx. 549, 551 (5th Cir. 2011) (“Miller has presented no specific facts showing an agreement between the private defendants and any state actor in this case.”).
With regards to Defendant Moore, the District Attorney is entitled to absolute prosecutorial immunity. The Fifth Circuit recently examined the scope and contours of prosecutorial immunity in Singleton v. Cannizzaro, 956 F.3d 773 (5th Cir. 2020). Therein the Court noted the following:
“The Supreme Court extended absolute immunity for § 1983 claims to state prosecutors in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In that case, a criminal defendant whose conviction had been overturned sued the prosecutor, several police officers, and a fingerprint expert, alleging “a conspiracy among them unlawfully to charge and convict him.” Id. at 415-16, 96 S.Ct. 984. But the Court concluded that state prosecutors are absolutely immune from § 1983 damages claims based on activities “intimately associated with the judicial phase of the criminal process.” Id. at 430, 96 S.Ct. 984. Thus, the Court held that a state prosecutor who acts “within the scope of his duties in initiating and pursuing a criminal prosecution” is absolutely immune from § 1983 claims for violating a “defendant's constitutional rights.” Id. at 410, 96 S.Ct. 984.
In discussing absolute immunity, “[t]he Supreme Court has made clear that ‘it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.' ” Loupe, 824 F.3d at 538 (quoting Kalina, 522 U.S. at 125, 118 S.Ct. 502). “Thus, ‘the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.' ” Loupe, 824 F.3d at 538 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)).
Instead, the Supreme Court has taken a “functional approach” to absolute immunity that “emphasize[s] that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). More specifically, the Court distinguishes between (1) actions taken “in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of [the prosecutor's] role as an advocate for the State,” and (2) “administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606.
In Buckley, the petitioner sued “prosecutors for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment.” Id. at 261, 113 S.Ct. 2606. The Supreme Court held that the prosecutors were not absolutely immune for allegedly fabricating evidence because they lacked “probable cause to arrest [the] petitioner or initiate judicial proceedings” at the time of the alleged fabrication. Id. at 274, 113 S.Ct. 2606. Thus, the prosecutors' “mission at that
time was entirely investigative in character.” Id. Importantly, however, the Court also recognized that “a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination, ... a prosecutor may engage in ‘police investigative work' that is entitled to only qualified immunity.” Id. at 274 n.5, 113 S.Ct. 2606; see also id. at 276, 113 S.Ct. 2606 (“When the functions of prosecutors and detectives are the same, ... the immunity that protects them is also the same.”).
We have adhered to this functional approach to absolute immunity. We have held that conduct protected by absolute immunity “is not limited ‘only to the act of initiati[ng judicial proceedings] itself and to conduct occurring in the courtroom,' but instead includes all actions ‘which occur in the course of [the prosecutor's] role as an advocate of the State.' ” Cousin v. Small, 325 F.3d 627, 632 (5th Cir. 2003) (per curiam) (quoting Buckley, 509 U.S. at 272-73, 113 S.Ct. 2606). Thus, prosecutors are absolutely immune even for “[w]ilful or malicious prosecutorial misconduct ... if it occurs in the exercise of their advocatory function.” Cousin, 325 F.3d at 635. But by the same token, “state prosecutors are not entitled to absolute immunity when they perform functions other than their quasi-judicial functions of ‘initiating prosecutions and presenting the State's case.' ” Marrero v.City of Hialeah, 625 F.2d 499, 507 (5th Cir. 1980) (quoting Imbler, 424 U.S. at 431, 96 S.Ct. 984).”
In the instant matter the plaintiff's allegations with regards to defendant Moore pertain to the act of initiating judicial proceedings and other acts that occurred in the course of his role as an advocate for the state. The plaintiff has not asserted that defendant Moore engaged in any act that was outside of the defendant's quasi-judicial functions. As such, defendant Moore is entitled to absolute prosecutorial immunity with regards to the plaintiff's claims asserted again him.
Likewise, the plaintiff's claims asserted against defendant Higginbotham are barred by judicial immunity. “Judicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions.” Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). This absolute immunity means that judges are “immun[e] from suit, not just from the ultimate assessment of damages,” Mireles v. Waco, 502 U.S. 9, 11 (1991), and applies to “bar[ ] both [Plaintiff's] federal and state law claims,” Sharp v. Palmisano, 2013 WL 5969661, at *4 (E.D. La. Nov. 8, 2013) (judicial immunity bars state law claims under Louisiana law).
Indeed, “[j]udicial immunity can be overcome only by showing that the actions complained of were nonjudicial in nature or by showing that the actions were taken in the complete absence of all jurisdiction.” Boyd, 31 F.3d at 284. Actions are “judicial in nature if they are normally performed by a judge and the parties affected dealt with the judge in his judicial capacity.” Id. Alleging that a judge acted with “bad faith or malice” does not preclude immunity. Mireles, 502 U.S. at 11.
In the instant matter the plaintiff's Complaint is devoid of any allegations of actions on the part of defendant Higginbotham that were nonjudicial in nature. Nor has the plaintiff alleged that any action taken by defendant Higginbotham was taken in the complete absence of all jurisdiction. As such, the plaintiff's claims against defendant Higginbotham are barred by judicial immunity.
Even if defendants Moore and Higginbotham were not entitled to immunity, the plaintiff would still not be entitled to the recovery of compensatory damages in this case because he has not alleged a physical injury sufficient to support such recovery. Pursuant to 42 U.S.C. § 1997e(e), a prisoner plaintiff is barred from the receipt of compensatory damages for mental or emotional injury in the absence of some showing of physical injury. Accordingly, this aspect of the plaintiff's claim should be rejected.
Furthermore, the plaintiff's claim calls into question the validity of his confinement; therefore, his claim is also subject to dismissal because it may only be pursued in a habeas corpus proceeding. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus”). Additionally, under the well-established doctrine set out in Younger v. Harris, 91 S.Ct. 746, 750-51 (1971), federal courts cannot interfere in state criminal proceedings unless extraordinary circumstances are present. See Gates v. Strain, 885 F.3d 874, 880 (5th Cir. 2018). The plaintiff has not alleged that he lacks an adequate opportunity to raise his constitutional challenges in the state court or that extraordinary circumstances otherwise warrant federal intervention.
Also, the plaintiff's claim for monetary damages associated with his continued confinement is barred pursuant to the rule stated in Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a prisoner's claim for monetary damages attributable to an alleged wrongful conviction or term of confinement is not cognizable in federal court whenever “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If so, “the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated,” either by state officials or through federal habeas corpus. Id. Were this Court to determine that the plaintiff is entitled to monetary damages for plaintiff's claim of prosecution outside of the statute of limitations, this would necessarily imply that the plaintiff's term of confinement was invalid. Since the plaintiff has failed to allege or show that his term of confinement has been invalidated or called into question in a separate proceeding, either in a state proceeding or through federal habeas corpus, the plaintiff's claim for monetary damages falls squarely within the holding of Heck v. Humphrey and must be dismissed. Accordingly, the plaintiff's claim for monetary damages arising out of the alleged untimely prosecution must be dismissed as it has not yet accrued.
Finally, to the extent that the plaintiff's allegations may be interpreted as seeking to invoke the supplemental jurisdiction of this court over potential state law claims, a district court may decline the exercise of supplemental jurisdiction if a plaintiff's state law claims raise novel or complex issues of state law, if the claims substantially predominate over the claims over which the district court has original jurisdiction, if the district court has dismissed all claims over which it had original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case, having recommended that the plaintiff's federal claims be dismissed, the Court further recommends that the exercise of supplemental jurisdiction be declined.
RECOMMENDATION
It is recommended that the Court decline the exercise of supplemental jurisdiction over any potential state law claims, and that this action be dismissed, with prejudice, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
The plaintiff is advised that 28 U.S.C. § 1915(g) provides that, “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [Proceedings in forma pauperis] 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.”