Epps v. City of Dallas Police Department et al

Filing 14

Order Accepting 13 Findings and Recommendation of the United States Magistrate Judge. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sam A Lindsay on 4/26/2016) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
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§
Plaintiff,
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v.
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CITY OF DALLAS POLICE DEPT, et al., §
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Defendants.
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TONY EPPS,

Civil Action No. 3:15-CV-3881-L

ORDER
Plaintiff Tony Epps (“Plaintiff”), who was convicted of unlawful possession of a firearm and
is currently imprisoned and proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983.
Plaintiff seeks monetary damages against Defendants Dallas Police Department, Dallas Police
Officer Sasser, Dallas County District Attorney Susan Hawk, Judge Gracie Lewis, and Jane Doe
defense counsel (collectively, “Defendants”) for wrongful prosecution and the stop, search, and
seizure of items from his vehicle that were allegedly done in violation of the Fourth Amendment.
Plaintiff also requests that he be released from custody.
The case was referred to Magistrate Judge Paul D. Stickney, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on March 30,
2016, recommending that the court dismiss without prejudice Plaintiff’s claim or request to be
released from custody, which can only be brought in a habeas corpus action. Regarding Plaintiff’s
remaining claims that were brought under section 1983, the magistrate judge recommended that the
court summarily dismiss the claims pursuant to 28 U.S.C. §§ 1915A and 1915A(e)(2) as follows:
(1) dismiss with prejudice Plaintiff’s claims against the Dallas Police Department because it has no

Order – Page 1

separate and distinct legal existence; (2) dismiss with prejudice Plaintiff’s claims against Dallas
County District Attorney Susan Hawk and Judge Gracie Lewis for wrongful conviction or
prosecution because they are absolutely immune under section 1983 for actions taken within the
scope of their jurisdiction; (3) dismiss with prejudice Plaintiff’s claims against his defense attorney,
who is not a state actor and cannot be sued under section 1983; and dismiss with prejudice Plaintiff’s
unlawful search and seizure claim and claim for wrongful conviction against Dallas Police Officer
Sasser until the conditions of Heck v. Humphrey, 512 U.S. 477 (1994), have been satisfied. No
objections to the Report were received as of the date of this order.
After considering the pleadings, file, the record, and Report, the court determines that the
findings and conclusions of the magistrate judge are correct, and accepts them as those of the court.
Accordingly, the court dismisses without prejudice Plaintiff’s claim or request to be released from
custody and dismisses with prejudice Plaintiff’s remaining claims pursuant to 28 U.S.C. §§ 1915A
and 1915A(e)(2) as follows: Plaintiff’s claims against Dallas County District Attorney Susan Hawk
and Judge Gracie Lewis for wrongful conviction or prosecution are dismissed with prejudice as
barred by immunity; (3) Plaintiff’s claims against his defense attorney, who is not a state actor and
cannot be sued under section 1983, are dismissed with prejudice; and Plaintiff’s unlawful search
and seizure claim and claim for wrongful conviction against Dallas Police Officer Sasser are
dismissed with prejudice until the conditions of Heck v. Humphrey, 512 U.S. 477 (1994), have been
satisfied. The clerk shall term all pending motions in this case.
The court prospectively certifies that any appeal of this action would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3). In support of this certification, the court
accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and
Order – Page 2

n.21 (5th Cir. 1997). The court concludes that any appeal of this action would present no legal point
of arguable merit and would therefore be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). In the event of an appeal, Plaintiff may challenge this certification by filing a separate motion
to proceed in forma pauperis on appeal with clerk of the United States Court of Appeals for the Fifth
Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. 24(a)(5).
It is so ordered this 26th day of April, 2016.

_________________________________
Sam A. Lindsay
United States District Judge

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