Fields v. Reeves et al

Filing 16

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. All relief not previously granted is hereby DENIED. The Clerk is directed to CLOSE this civil action. Signed by District Judge Amos L. Mazzant, III on 6/18/2018. ***R & R entered in lead case 4:16cv607, Memorandum entered on 6/18/2018.(kls, )

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United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SCOTT FIELDS
v.
DAVID LACKEY, JOHN DOE (OFFICER
COLBERT)

§
§
§
§
§

Civil Action No. 4:16-CV-607
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On March 19, 2018, the report of the Magistrate Judge (Dkt. #140) was entered containing
proposed findings of fact and recommendations that Defendant Dr. David Lackey and Respondent
Office of the Attorney General for the State of Texas’s Motion to Dismiss1 (Dkt. #63) be granted
and that Plaintiff Scott Fields’s § 1983 malicious prosecution, conspiracy, false arrest, and false
imprisonment claims against Dr. Lackey and Officer Colbert in their individual capacities be
dismissed. Having received the report of the Magistrate Judge (Dkt. #140), having considered
Plaintiff Scott Fields’s objections (Dkts. #144, #146), and having conducted a de novo review, the
Court is of the opinion that the Magistrate Judge’s report (Dkt. #140) should be adopted as set
forth below.
RELEVANT BACKGROUND
General Background
The underlying facts of this case have been set forth previously; as such, the Court sets
forth only those facts pertinent to Fields’s objections. On August 12, 2014, Defendant Dr. David

1

Plaintiff’s claims against Defendants Lackey and Colbert in their individual capacities are the only remaining
claims in this action (Dkts. 93, 94, 100, 101, 102, 103, 117, 124).

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Lackey, the then-commissioner for the Texas Department of State Health Services (“DSHS”), and
Defendant FNU Colbert, a DSHS officer, reported to the Sherman, Texas Police Department that
Plaintiff Scott Fields left a phone message for Dr. Lackey, wherein Fields allegedly threatened to
physically assault or murder Dr. Lackey. Fields claims the accusations made by Dr. Lackey and
Officer Colbert were false because the phone message itself did not contain any statements that
could be construed as threats of violence, physical assault or murder (Dkt. #14 at p. 3). After being
detained for 215 days, the charges against Fields were dismissed (Dkt. #14 at pp. 4, 33).
Fields filed this civil rights action on August 12, 2016 (Dkt. #1). At present, only Fields’s
claims against Defendants Dr. Lackey and Officer Colbert in their individual capacities remain in
this case. On December 7, 2017, the undersigned ordered Fields to file a Rule 7(a) reply addressing
such claims and Dr. Lackey and Officer Colbert’s qualified immunity defenses to Fields’s claims.
On January 8, 2018, Fields filed a Notice of Interlocutory Appeal and a Motion to Proceed In
Forma Pauperis on Appeal (Dkts. #128, #130). On February 1, 2018, the Court denied Fields’s
Motion to Proceed In Forma Pauperis on Appeal, and again ordered Fields to file a Rule 7(a) reply
(Dkt. #131). On March 8, 2018, Fields filed “Plaintiff’s Rule 15 Amended Response to District
Judge’s February 1, 2018 Orders,” which the Magistrate Judge construed as a Rule 7(a) reply
(Dkt. #137). On March 19, 2018, the Magistrate Judge entered a Report and Recommendation,
recommending that the Court grant Defendant Lackey’s Motion to Dismiss and dismiss the entirety
of Fields’s claims against both Dr. Lackey and Officer Colbert in their individual capacities
(Dkt. #140). On April 9, 2018, Fields filed his fifth Motion to Proceed In Forma Pauperis on
Appeal (Dkt. #143), which the Court addresses herein. Fields also filed objection to the Magistrate
Judge’s Report and Recommendation; on April 18, 2018, Fields filed “Plaintiff’s Written
Objections to March 19, 2018 Report and Recommendation by Magistrate Judge” (Dkt. #144).

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Then, on May 9, 2018, Fields filed “Plaintiff’s Rule 15 Amended Objections to March 19, 2018
Report and Recommendation by Magistrate Judge” (Dkt. #146).2, 3
OBJECTIONS TO REPORT AND RECOMMENDATION
Fields has filed two sets of objections to the Magistrate Judge’s report (Dkts. #144, #146).
A party who files timely written objections to a magistrate judge’s report and recommendation is
entitled to a de novo review of those findings or recommendations to which the party specifically
objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3).
Fields has generally objected to the Magistrate Judge’s recommendation that the Court
dismiss his claims against Dr. Lackey and Officer Colbert in their individual capacities.
Specifically, the Court discerns Fields objects that: (1) the undersigned and the Magistrate Judge
have each been disqualified from presiding over this matter; (2) the Magistrate Judge failed to
broadly construe Fields’s pro se pleadings; (3) the Magistrate Judge failed to adequately address
Fields’s conspiracy claims; (4) the Magistrate Judge failed to adequately address his malicious
prosecution claims; (5) Fields has overcome Dr. Lackey and Officer Colbert’s assertion of
qualified immunity because their accusations were entirely “bogus”; and (6) any action by the
Court is impermissible because there is a stay pending appeal currently in place.
Notably, some of Fields’s objections to the instant Report and Recommendation are
identical to and/or substantially similar to objections Fields previously raised and which have been
disposed of by this Court in connection with earlier reports, i.e., disqualification of the
undersigned, liberal construction of Fields’s pro se pleadings (see Dkts. #97, #98, #109, #111,

2

Notwithstanding that Fields titled this filing as his “amended” objections, the Court has considered both sets of
objections in its consideration of the Magistrate Judge’s Report and Recommendation.
3
On May 14, 2018, Fields filed “Plaintiff’s Rule 60(a) Motion for Correction of Record,” wherein he asks the Court
to “deem or construe Paragraphs 11 and 38 to read” as set forth in the Motion for Correction (Dkt. #149 at p. 3). On
June 5, 201, Fields filed a second “Motion for Correction” (Dkt. #152). Insofar as these Motions apply to the pleadings
referenced herein, the Court grants Fields’s Motions for Correction.

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#112, #113). The Court has already substantively considered and found such objections without
merit (Dkts. #117, #124).

Notwithstanding, the Court herein again sets forth or otherwise

incorporates its analysis of each of Fields’s stated objections.
Disqualification
Fields argues that “at all times relevant through course of [this case], Judge Mazzant and
Judge Nowak alike are and have been inherently disqualified from presid[ing] over both causes by
terms of 28 U.S.C. [§] 455” (Dkt. #146 at p. 3). As support, Fields avers that both “Judges Mazzant
and Nowak are and have been longtime residential and political fixtures amid the Grayson County,
Texas and Sherman, Texas landscapes,” and “enjoy personal relationships, or histories of personal
time or fraternization, with some or most of the defendants who have been dismissed from this
lawsuit” (Dkts. #144 at pp. 3–4; #146 at p. 3). The Court has addressed this same spurious
allegation on no less than six occasions.
Fields again fails to identify any legal authority or factual support for his proposition that
the undersigned or the Magistrate Judge should be disqualified from presiding over this case.
Fields’s unfounded allegations, that both “Judges Mazzant and Nowak are and have been longtime
residential and political fixtures” in Grayson County, Texas, and “enjoy personal
relationships. . . with some or most of the defendants who have been dismissed from this lawsuit,”
even if true, without more, are insufficient for recusal. Parrish v. Board of Comm’rs of Ala. State
Bar, 524 F.2d 98 (5th Cir. 1975) (en banc) (fact that judge had acquaintanceship or friendship with
some defendants, witnesses, and defense counsel did not require recusal), cert. denied, 425 U.S.
944 (1976). Accordingly, this objection is once more overruled.
Fields’s Pro Se Status
Fields also again asserts that “this district court is or has been inherently mandated to
review all of Plaintiff’s pleadings with a liberal construction; with a special solitude; and in a
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manner that construes and recognizes any and all alleged facts that can be inferred from his
pleadings” (Dkts. #144 at p. 5; #146 at p. 5) (internal citations omitted). As examples of the
Court’s alleged failure to accommodate Fields’s status as a pro se litigant, he alleges that “terms
of this cause have transpired to be bulky. . . and expressly motions, that this document should not
be subject to any perceived page limitations,” and

“Plaintiff alleges that this district court’s

demand for or construe of ‘specific pleadings’ cannot detract from rules of law regarding [pro se]
litigation” (Dkts. #144 at p. 5, #146 at p. 5). Fields also specifically argues that the Court’s
direction, in ordering a Rule 7(a) reply, to address Dr. Lackey and Officer Colbert’s assertions of
qualified immunity with specific, concrete facts violates the Court’s responsibility to liberally
construe pro se pleadings.4
Fields is correct that “parties who proceed pro se are often given more leeway than
represented parties in correcting errors in pleadings,” and that “a court must liberally construe a
pro se complaint, taking all well-pleaded allegations as true.” Simmons v. Methodist Hosps. of
Dallas, 106 F. Supp. 3d 799, 803 (N.D. Tex.), aff’d, 632 F. App’x 784 (5th Cir. 2015). However,
“pro se litigants are [still] expected to comply with the rules of pleading.” Id. (citing Birl v. Estelle,
660 F.2d 592, 593 (5th Cir. 1981) (per curiam)). And, “a pro se plaintiff’s complaint ‘must set
forth facts giving rise to a claim on which relief may be granted.’” Id. (quoting Johnson v. Atkins,
999 F.2d 99, 100 (5th Cir. 1993) (per curiam)). In the instant case, the Court ordered Fields to file
a Rule 7(a) reply. In ordering a Rule 7(a) reply, the Court sought factual information related to
Fields’s claims against Dr. Lackey and Officer Colbert in their individual capacities. The Court
ordered a Rule 7(a) reply because Fields’s pleadings contained “only sparse details of claimed
wrongdoing by [the instant] officials.” Hatcher v. City of Grand Prairie, No. 3:14-CV-432-M,

4

Fields also makes multiple blanket objections to the “validity” of the Court’s order for a Rule 7(a) reply, but fails to
raise any specific argument or authority supporting this contention. This objection is similarly overruled.

5

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2014 WL 3893907, at *8–9 (N.D. Tex. Aug. 6, 2014); Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.
1999) (“Faced with sparse details of claimed wrongdoing by officials, trial courts ought routinely
require plaintiffs to file a reply under Federal Rule of Civil Procedure 7(a) to qualified immunity
defenses.”).
Fields’s status as a pro se litigant did not excuse him from complying with the Court’s
order or the pleading requirements imposed on overcoming the assertion of a qualified immunity
defense. See Vafaiyan v. City of Wichita Falls, Tex., 398 F. App’x 989, 990 (5th Cir. 2010).
Moreover, upon independent review of the record, the Court finds that each of Fields’s pleadings
were afforded a liberal construction. Accordingly, Fields’s objection is overruled.
Conspiracy Claim
Fields objects that the Court has failed to consider his conspiracy claim under § 1983
(Dkts. #144 at pp. 11–12; #146 at pp. 13–15). Fields is mistaken. The Magistrate Judge considered
Fields’s conspiracy claim under § 1983, explaining:
“Section 1983 does not provide an independent cause of action for conspiracy.”
E.G. v. Bond, No. 1:16-CV-068-C, 2017 WL 129019, at *4 (N.D. Tex. Jan. 13,
2017) (citing Gonzalez v. Harlingen Consol. Indep. Sch. Dist., 96 F. Supp. 3d 653,
667 (S.D. Tex. 2015)). “Instead, a § 1983 conspiracy claim serves as the legal
mechanism through which to impose liability on each and all of the Defendants
without regard to the person doing the particular act.” Id. (quoting Hale v. Townley,
45 F.3d 914, 920 (5th Cir. 1995)) (internal quotations omitted). “To raise a claim
for conspiracy under § 1983, Plaintiffs must allege (1) the existence of a conspiracy
involving state action and (2) a deprivation of civil rights in furtherance of the
conspiracy by a party to the conspiracy.” Id. (citing [Pfannstiel v. City of Marion,
918 F.2d 1178, 1187 (5th Cir. 1990), overruled on other grounds by Martin v.
Thomas, 973 F.2d 449 (5th Cir. 1992)]). “Simply conclusory allegations of
conspiracy, without reference to material facts, are insufficient to state a conspiracy
claim under § 1983.” Id. (citing Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986)).
***
Plaintiff provides nothing in his Rule 7(a) Reply to clarify or add to this blanket
allegation that Defendants Lackey and Colbert conspired together to raise false
accusations against Plaintiff. Thus, the allegations raised in Plaintiff’s Rule 7(a)
Reply are similarly insufficient to support a conspiracy claim; Plaintiff has wholly

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failed to support his argument that Defendants conspired to lodge false accusations
against him.
(Dkt. #140 at pp. 8, 9). The Magistrate Judge clearly considered Fields’s conspiracy claim as a
claim under § 1983. Moreover, as the Magistrate Judge noted, Fields has failed to raise any factual
support or argument demonstrating that his conspiracy claim should not be dismissed.
Accordingly, this objection is overruled.
Fields further objects to the recommendation that his conspiracy claim under § 1985 also
be denied, and specifically contends that his “obligation to establish that the district court
defendants acted and conspired against him with an invidious, class[-]based animus is already
expressly or shallowly pled amid his alleged conspiracy objectives” (Dkts. #144 at p. 11;
#146 at p. 13).

In considering Fields’s conspiracy claim under § 1985, the Report and

Recommendation stated:
Plaintiff alleges that Defendants “acted and conspired against [Plaintiff] with an
invidious, class based animus is [sic] and remains swamped and fettered amid scene
that he is effectively coerced from lodging various pleadings. . . and from
presenting various evidence exhibits in the same” [Dkt. 137 at 10]. Plaintiff never
defines this class, and therefore his claims under § 1985 fail. Pruitt v. City of
Campbell, Texas, No. CIV. A. 301-CV-1328-, 2001 WL 1442117, at *3 (N.D. Tex.
Nov. 13, 2001) (“This vague, unrecognizable, and borderless class does not satisfy
§ 1985(3)”).
(Dkt. #140 at p. 9). As part of stating a claim under 42 U.S.C. § 1985(3), a “plaintiff must show
that the conspiracy was motivated by a class-based animus.” Hilliard v. Ferguson, 30 F.3d 649,
653 (5th Cir. 1994). Fields’s objections raises nearly identical conclusory assertions as those
previously considered and rejected by the Magistrate Judge regarding this requirement under
§ 1985. As the Magistrate Judge correctly found, Fields’s failure to define this class is fatal to his
§ 1985 conspiracy claim. This objection is overruled.

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Malicious Prosecution Claim
Fields next objects to the Magistrate Judge’s recommendation that his malicious
prosecution claim be dismissed. Fields specifically “objects to Judge Nowak’s finding that there
is no existing federal constitutional right to be free from malicious prosecution,” and points to
Albright v. Oliver, 510 U.S. 266 (1994), as the basis for his malicious prosecution claim.
(Dkts. #144 at p. 13; #146 at p. 16).
The Fifth Circuit has expressly “held that a freestanding claim for malicious prosecution is
not a violation of the United States Constitution and to proceed under section 1983 a claim must
rest on a denial of rights secured under federal not state law.” Pack v. Wood Cty., Texas,
No. CIV.A. 6:08-CV-198, 2009 WL 1922897, at *4 (E.D. Tex. July 1, 2009) (citing Castellano v.
Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) (en banc)). The Court has already advised Fields of
this authority and provided Fields an opportunity to clarify under which constitutional right he
brings his malicious prosecution claim. Fields failed to do so, and in his objections again raises
nearly identical assertions related to his malicious prosecution claim. Fields avers that his
malicious prosecution claims are based upon his federal constitutional right to be free from
malicious prosecution and free from government retaliation. Because Fields’s allegations do not
enumerate a constitutional right, he has failed to plead a sufficient malicious prosecution claim
under § 1983.
Moreover, even if the Court broadly construes Fields’s reference to Albright v. Oliver,
510 U.S. 266 (1994) as a malicious prosecution claim under the Fourth Amendment, Fields’s claim
still fails. The Fifth Circuit “has held that although there is no ‘freestanding constitutional right to
be free from malicious prosecution,’ ‘[t]he initiation of criminal charges without probable cause
may set in force events that run afoul of explicit constitutional protection—the Fourth Amendment

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if the accused is seized and arrested, for example.’” Winfrey v. Rogers, 882 F.3d 187, 196 (5th Cir.
2018) (quoting Castellano, 352 F.3d at 945, 953). However, here, Fields’s conclusory allegations
fail to demonstrate that there was no probable cause for his arrest or seizure. Fields asserts that:
the “alleged phone message contents in controversy” indisputably contain no
statements sufficient. . . to arouse any accusation or complaint of crime to police;
indisputably contain no statements sufficient to arise probable cause for police to
coin any person as a suspect of unlawful threat or speech crime; and indisputably
contain no statements sufficient [] to convince any prosecutor that a conviction for
speech crime obtainable against any person.
(Dkt. #146 at p. 12). Although Fields vehemently avers that there was no probable cause that
Fields’s alleged phone message to Dr. Lackey contained any threats of violence, Fields fails to
support this beyond this bald statement. Fields does not explain or point to anything that would
show Dr. Lackey’s report to be demonstrably false or misleading. See Travis v. City of Grand
Prairie, Texas, 654 F. App’x 161, 165 (5th Cir. 2016) (plaintiff’s malicious prosecution claim
inadequately pleaded). Fields has failed to establish a claim for malicious prosecution under the
Fourth Amendment. This objection is overruled.5
Qualified Immunity
Fields also argues that the Magistrate Judge improperly found Dr. Lackey and Officer
Colbert entitled to qualified immunity as to Fields’s remaining claims. At the pleading stage, an
individual defendant official is entitled to qualified immunity “unless [the] plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,

5

Conversely, Fields also alleges that his pleadings are insufficiently supported because Defendants have put him
“under duress and coerced [Fields] from lodge [sic] of various pleadings” (Dkt. #146 at p. 6). The Court has already
addressed this argument in its October 19 Memorandum (Dkt. #117 at p. 15 (Fields “does not state what these
pleadings were or what this evidence consisted of” and “does not detail what actions or omissions were taken by these
defendants to prevent him from presenting these pleadings or arguments.”)). Again, the Court finds that Fields has
not identified the additional pleadings and/or evidence that he has been prevented from presenting to the Court.

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2080 (2011). Specifically, Fields argues in his objections that “any crime accusation that a person
‘threatened to assault or murder’ another person resonates and absolutely screams itself bogus and
unenforceable. . . so clearly and loudly that any such lodge or advancement of the same is clearly
and egregiously unreasonable, is without authority of law, and inherently defeats any qualified
immunity” (Dkts. #144 at pp. 14–15; #146 at p. 16). In the Report and Recommendation, the
Magistrate Judge considered identical allegations, and found:
Plaintiff’s Rule 7(a) Reply has failed to establish that either Defendants Lackey or
Colbert “violated a statutory or constitutional right.” Because Plaintiff has failed
to provide the required detail to overcome the qualified immunity defense,
Plaintiff’s remaining claims should be dismissed. Furthermore, aside from his
conclusory assertion that Defendants’ interpretation of the phone message was
“bogus,” Plaintiff has wholly failed to explain why Defendants Lackey and
Colbert’s actions were objectively unreasonable.
***
Plaintiff has not established that either Defendants Lackey or Colbert violated a
statutory or constitutional right. The Court ordered a Rule 7(a) Reply because
Plaintiff’s pleadings contained “only sparse details of claimed wrongdoing by
officials.” The conclusory allegations present in Plaintiff’s complaint and Rule 7(a)
Reply fail to overcome Defendants’ assertion of qualified immunity.
(Dkt. #140 at pp. 13–14) (internal citations omitted). The undersigned agrees that Fields’s
conclusory, unfounded allegations are insufficient to overcome Dr. Lackey and Officer Colbert’s
assertions of qualified immunity. See Weathered v. Dallas Cty., No. 3:10-CV-0781-B, 2011 WL
1356881, at *5 (N.D. Tex. Apr. 8, 2011) (“If the plaintiff does not provide the required detail to
overcome the qualified immunity defense, the court must dismiss the complaint.”); Villanueva v.
Texas Tech Univ., No. 5:10-CV-186-C, 2010 WL 11465139, at *6 (N.D. Tex. Dec. 17, 2010)
(same). Fields has failed to demonstrate what Defendants’ conduct in this instance was “bogus,”
“inconceivable,” or “unenforceable.” Fields’s conclusory allegations are insufficient to overcome
a qualified immunity defense. See Windham v. City of Center, Tex., No. 9:11CV152, 2012 WL
2526945, at *5 (E.D. Tex. June 1, 2012), report and recommendation adopted, No. 9:11CV152,

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2012 WL 2524263 (E.D. Tex. June 29, 2012)(“conclusory allegations are insufficient to defeat a
motion to dismiss asserting the defense of qualified immunity”). This objection is overruled.
Stay Pending Appeal
Fields finally argues that the Court is forbidden from taking any further action in
this proceeding because it is currently stayed pending appellate review (Dkts. #144 at p. 4;
#146 at p. 4). Fields asserts that “this district court’s any further move regarding this cause absent
full appellate court dispositions would simply broaden factual and legal quagmires that are already
heavily laden through course of this cause and its related appeals” (Dkts. #144 at pp. 4–
5; #146 at 4). In the instant case, Fields has filed five notices of interlocutory appeal, seeking to
appeal a broad range of issues, including issues related to Fields’s recusal requests, the dismissal
of the other named defendants (aside from Dr. Lackey and Officer Colbert), and the Court’s order
to file a Rule 7(a) reply (Dkts. #118, #120, #128, #135, #142). The record does not demonstrate
that a stay is currently imposed in this case. This objection is overruled.
MOTION TO PROCEED IN FORMA PAUPERIS
Fields has also filed a notice of interlocutory appeal from the Court’s March 9, 2018 Order
denying his previous Motion to Proceed In Forma Pauperis, and seeks leave to proceed in forma
pauperis on such appeal (Dkts. #142, #143). This is at least the fifth time Fields has sought leave
to proceed in forma pauperis on a purported interlocutory appeal.
The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a).
In connection with requests to proceed in forma pauperis on appeal, the motion must state “the
nature of the action, defense or appeal and affiant’s belief that he is entitled to redress.” 28 U.S.C.
§ 1915(a); see also FED. R. APP. P. 24(a)(1) (“The party must attach an affidavit that: (A) shows
in the detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or to give

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security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the
party intends to present on appeal.”). 28 U.S.C. § 1915(a)(3) further states that the district court
may deny leave to proceed in forma pauperis if an appeal is not taken in “good faith” (i.e., if the
appeal fails to present a non-frivolous issue). Cay v. Estelle, 789 F.2d 318, 326 (5th Cir. 1986).
An appeal is taken in good faith if it presents an arguable issue on the merits or factual
basis for the claim and therefore is not frivolous. Coppedge v. United States, 369 U.S. 438, 445
(1962); Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983). To that end, a movant must
demonstrate the existence of a non-frivolous issue for appeal. See also Payne v. Lynaugh, 843 F.2d
177, 178 (5th Cir. 1988). If the district court cannot discern the existence of any non-frivolous
issue on appeal, then an appeal is not taken in “good faith” and the movant’s petition to appeal in
forma pauperis must be denied. Howard, 707 F.2d at 220 (citation omitted). The district court
should consider any pleadings and motions of a pro se litigant under less stringent standards than
those applicable to licensed attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Notwithstanding, although pro se briefs must be liberally construed, even pro se litigants must
brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222–25 (5th Cir. 1993).
Fields has submitted an affidavit in support of his Motion, which indicates that he lacks the
financial resources to prosecute an appeal (Dkt. #143-1). The Court finds Fields was indigent both
at the outset of this case and now also in considering his Motion for Leave to Proceed In Forma
Pauperis (Dkts. #4, #143). However, Fields has a further obligation to demonstrate that he is
entitled to redress and that his requested appeal raises non-frivolous issues. In his Affidavit, Fields
lists six issues he intends to raise on appeal: (1) “Judges Mazzant and Nowak are inherently
disqualified from all preside [sic] over this cause by terms of 28 USC [§] 455”; (2) “coercion is at
play, which restrains [Fields’s] pleadings”; (3) “Judges Mazzant and Nowak have acted without

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jurisdiction, without authority, and without evidence regarding this so called Local Rule 7(a)
proceeding”; (4) “Local Rule 7(a) is here unconstitutionally applied, and purports to be used as an
amendment of pleadings protocol, absent of orderly processes”; (5) “[t]he original order that
[Fields] plead a so called Rule 7(a) response gave no reasoning. Now after a response filed, [Fields]
now learns the purpose of that order”; and (6) “[t]he district court ignored all of [Fields’s]
objections, including expressed Rule 8 motions for stay pending appellate dispositions”
(Dkt.#143-1 at p. 5). The Court notes that issues one through five are virtually identical to issues
already considered and subsequently deemed frivolous issues for appeal in the Court’s January 8,
2018 Memorandum Adopting, February 1, 2018 Order, and/or March 9, 2018 Order. The Court
adopts herein its previous discussion related to issues one through five and further states the Court
cannot discern that any of these issues represent a non-frivolous issue for appeal; Fields’s issues
one, two, three, four, and five are not immediately appealable under § 1292(a), § 1292(b), or any
judicially created exception to the finality rule.
As to Fields’s sixth objection, that the Court has “ignored” his purported motions to stay
under Federal Rule of Appellate Procedure 8, the Court finds that this is also a frivolous issue for
appeal. “[A]s a general rule, parties must litigate all issues in the trial court before appealing any
one issue.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir. 2009). A limited
exception to this general rule is the collateral order doctrine. A “collateral order” may be
immediately appealable if it is an order that conclusively determines an important issue that is
separate from the merits in such a way as to render the district court’s resolution of that issue
unreviewable on appeal from a final judgment. McKee v. Lang, 393 F. App’x 235, 238 (5th Cir.
2010) (per curiam) (citing Will v. Hallock, 546 U.S. 345, 349 (2006) (defining an appealable
“collateral order” as an order that conclusively determines an important issue that is separate from

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the merits in such a way as to render the district court’s resolution of that issue unreviewable on
appeal from a final judgment)). “Immediately appealable orders include: those rejecting absolute
immunity or qualified immunity; denying a state’s claim to Eleventh Amendment immunity; and
– in the criminal context – a defendant’s adverse ruling on a double jeopardy defense. These types
of orders, the Court explained, implicate weighty public interest concerns: in each one, ‘some
particular value of a high order’ was at issue.” In re Deepwater Horizon, 793 F.3d 479, 484–85
(5th Cir. 2015) (quoting Will, 546 U.S. at 352) (citation omitted). Even assuming that Fields has
filed any such Rule 8 motions, the Court’s action (or inaction, as Fields suggests) on such issues
would not constitute a collateral order that would be immediately appealable.
Fields must wait to appeal the dismissal of the issues he seeks to raise in his notices until
the final resolution of his case and/or as to the immunity defenses until after the Court has ruled
on such defenses, which the Court does herein in this Memorandum. Accordingly, Fields’s
previously filed Motion to Proceed on Appeal In Forma Pauperis is denied.6
CONCLUSION
Having considered Fields’s objections (Dkts. #144, #146), and having conducted a de novo
review, the Court adopts the Magistrate Judge’s report (Dkt. #140) as the findings and conclusions
of the Court.
It is therefore ORDERED that Defendant Dr. David Lackey’s and Respondent Office of
the Attorney General’s Motion to Dismiss (Dkt. #63) is GRANTED. Fields’s remaining § 1983
malicious prosecution, conspiracy, false arrest and false imprisonment claims against Dr. Lackey
and Officer Colbert in their individual capacities are hereby DISMISSED.

6

The entry of this Memorandum Opinion constitutes a final judgment from which Fields may now pursue an appeal.

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Case 4:16-cv-00607-ALM-CAN Document 154 Filed 06/18/18 Page 15 of 15 PageID #: 1224

It is further ORDERED that “Plaintiff’s Rule 60(a) Motion for Correction of Record”
(Dkt. #149) and “Plaintiff’s Rules 7 and 60(a) Motion for Correction of Record” (Dkt. #152) are
GRANTED.
It is further ORDERED that Fields’s Motion to Proceed on Appeal In Forma Pauperis
.

(Dkt. #143) is DENIED.
All relief not previously granted is hereby DENIED.
The Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.
SIGNED this 18th day of June, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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