Beckstrand v. Fort Worth Police Department et al
Filing
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MEMORANDUM OPINION and ORDER... plaintiff's motion to include additional defendants and Motion for Personal History and Custody are hereby denied... all claims and causes of action asserted by plaintiff against anyone in this case are hereby dismissed with prejudice pursuant to the authority of 28 USC 1915A(b)(1). See Order for further specifics. (Ordered by Judge John McBryde on 11/6/2012) (krg)(copy to TXED)
U.S. DISTRICT COURT.
NORTHERN DISTRICT OF TEXAS
·.
FILED
IN THE UNITED STATES DISTRICT CCPRT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
·•··
KEVIN ROY BECKSTRAND,
§
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§
§
§
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Plaintiff,
vs.
FORT WORTH POLICE DEPT.
ET AL.
I
I
Defendants.
NOV -6 2012
c;ERK~ U.S. DISTRICT CO CRT
. Y----~~-----
'------.:::.::~-----~.
Deputy
NO. 4:12-CV-697-A
MEMORANDUM OPINION
and
ORDER
Plaintiff, Kevin Roy Beckstrand, an inmate in the Tarrant
County Jail, filed this suit pro se under 42 U.S.C.
§
1983,
naming as defendants Fort Worth Police Department, Tarrant County
Sheriff's Department and Tarrant County Jail, Erin Mandi
Beckstrand ("Erin") , Noah B. Morgan ("Noah") , Kyli Morgan
("Kyli"), Fidelity Investments, Tarrant County District Attorney
Joe Shannon, Jr.,
("Shannon"), and Assistant District Attorney
Lloyd Whelchel ("Whelchel").
Because Fort Worth Police
Department is not an entity capable of being sued, the court is
substituting City of Fort Worth ("City") as the proper defendant.
Likewise, Tarrant County Sheriff's Department and Tarrant County
Jail are not proper defendants, and the court is substituting
Tarrant County ("County") as the correct defendant.
I .
The Complaint
Following is a summary of the allegations in the complaint:
At the time of the events giving rise to the complaint
plaintiff and his wife, Erin, were separated and pursuing a
divorce.
On July 26, 2011, plaintiff and his children were
preparing to leave for a vacation trip; however, plaintiff had a
work meeting that morning so plaintiff asked Erin to watch the
children.
Erin arranged for her sister, Kyli, to pick up the
children and watch them.
Following plaintiff's work meeting he
attempted to locate Kyli and the children, but he was unable to
reach either Kyli or Erin.
Kyli sent plaintiff a text message
saying Erin had asked her to keep the children from plaintiff.
The remainder of the day plaintiff attempted to locate his
children and at times called the Fort Worth and Grapevine police
departments for assistance.
Sometime after 10:00 p.m. plaintiff went to his former
family home, where Erin still lived with the children, to look
for them.
Plaintiff thought he saw a light on in his bedroom;
however, no one answered when plaintiff knocked and pounded on
the front and back doors and rang the doorbell.
Plaintiff,
fearing his children were in danger, finally threw a rock through
a window in the back door and unlocked the door.
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While plaintiff
was checking the garage, his brother-in-law, Noah, entered the
house and found plaintiff in the garage.
Noah and plaintiff
fought, with plaintiff repeatedly hitting Noah in the face and
head, and Noah eventually throwing a brick at plaintiff.
Both
men ran outside; plaintiff ran to a neighbor's house and asked
him to call police.
Plaintiff was arrested and charged with
burglary of a habitation with intent to commit assault.
Plaintiff was convicted by a jury and sentenced to three years'
imprisonment.
Plaintiff is presently incarcerated in the Tarrant
County Jail.
II.
Evaluating the Complaint Under 28 U.S.C.
§
1915A
As a prisoner seeking redress from government officials,
plaintiff's complaint is subject to preliminary screening under
28 U.S.C.
§
1915A, regardless of whether he is proceeding in
forma pauperis.
Cir. 1998).
See Martin v. Scott, 156 F.3d 578, 579-80 (5th
Section 1915A(b) (1) provides for sua sponte
dismissal if the court finds that the complaint is either
frivolous or fails to state a claim upon which relief may be
granted.
A claim is frivolous if it "lacks an arguable basis in
either fact or law."
(1989).
Neitzke v. Williams, 490 U.S. 319, 325
A complaint fails to state a claim upon which relief can
be granted when, assuming that all the allegations in the
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complaint are true even if doubtful in fact, such allegations
fail to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 u.s. 544, 555 (2007) (internal
quotation marks and citations omitted) .
Although pro se complaints and arguments must be liberally
construed, Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994),
"[a] plaintiff may not . . . plead merely conclusory allegations
to successfully state a section 1983 claim, but must instead set
forth specific facts which, if proven, would warrant the relief
sought."
Arnaud v. Odom, 870 F.2d 304, 307 (5th Cir. 1989).
After considering plaintiff's claims as described in the
complaint, the court concludes that he has failed to state a
claim for relief against any defendant.
III.
Analysis
A.
The Rule in Heck
In 1994, the United States Supreme Court stated that for a
plaintiff to recover damages under
§
1983
for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
4
§
2254.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(footnote omitted).
Thus, the Supreme Court "unequivocally held that unless an
authorized tribunal or executive body has overturned or otherwise
invalidated the plaintiff's conviction, his claim 'is not
cognizable under [§] 1983. '"
301 (5th Cir. 2000)
Randell v. Johnson, 227 F.3d 300,
(per curiam)
(quoting Heck, 512 U.S. at
487)).
Here, plaintiff's claims arise from events that led to his
arrest, followed by charges of burglary of a habitation with
intent to commit assault, and eventually a guilty verdict and
punishment of three years' imprisonment.
Plaintiff now alleges
that County is liable to him for unlawful imprisonment, while he
claims that City lost evidence concerning his reports to the
police that Erin had abducted his children.
Success on these
claims would necessarily imply the invalidity of plaintiff's
underlying conviction.
See Penley v. Collin Cnty., Tex., 446
F.3d 572, 573 (5th Cir. 2006)
(per curiam)
(Heck barred
plaintiff's claims based on allegations that
County officials
had improperly destroyed blood evidence used to convict him of
manslaughter); McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d
158, 161 (5th Cir. 1995)
(per curiam)
imprisonment dismissed based on Heck).
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(claims of illegal
Plaintiff, however, has
neither alleged nor provided the court evidence to show that his
conviction has been reversed, expunged, invalidated, or otherwise
called into question.
Therefore, dismissal is appropriate as to
plaintiff's claims against City, and his claim of unlawful
imprisonment against County.
(5th Cir. 1994)
B.
Boyd v. Biggers, 31 F.3d 279, 283
(per curiam) .
Claims Against City and County
Plaintiff's claims against City and County1 must be
dismissed on the additional basis that he has failed properly to
allege any claims of municipal liability against those entities.
It is well-settled that local government entities cannot be held
liable for the acts of their employees solely on a theory of
respondeat superior.
658, 692 (1978).
Monell v. Dep't of Soc. Servs., 436 U.S.
Liability may be imposed against a local
government entity under
§
1983 only "if the governmental body
itself subjects a person to a deprivation of rights or causes a
person to be subjected to such deprivation."
Thompson,
u.s.
Connick v.
, 131 S. Ct. 1350, 1359 (2011)
Monell, 436 U.S. at 692)
(quoting
(internal quotation marks omitted).
To hold City or County liable under
§
1983 requires
plaintiff to "initially allege that an official policy or custom
1
Along with his claim of unlawful imprisonment, plaintiff also alleged against County claims of
cruel and unusual punishment, sexual harassment and abuse, and physical abuse.
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was a cause in fact of the deprivation of rights inflicted."
Spiller v. City of Texas city, Police Dept., 130 F.3d 162, 167
(5th Cir. 1997)
(internal quotation marks and citation omitted).
"Official municipal policy includes the decisions of a
government's lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
the force of law."
Connick, 131 S. Ct. at 1359.
against local government defendants pursuant to
Liability
§
1983 thus
requires proof of a policymaker, an official policy, and a
violation of constitutional rights whose "moving force" is the
policy or custom.
Piotrowski v. City of Houston, 237 F.3d 567,
578 (5th Cir. 2001).
Here, nothing in the complaint alleges that an official
policy or custom was a cause in fact of the deprivation of
rights, nor has plaintiff identified any responsible policymaking
officials.
Stated differently, the complaint fails to allege the
existence of any policymaker or official policy of City or
County, nor does it contain specific facts showing the alleged
policy was the moving force behind any constitutional violation.
As no facts are alleged in the complaint that would suggest
liability on the part of City or County, the claims against those
entities are dismissed.
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C.
Erin, Noah, and Kyli
To allege a claim pursuant to
§
1983, plaintiff "must allege
facts tending to show (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."
F.3d 234, 241 (5th Cir. 1999)
citation omitted).
Bass v. Parkwood Hosp., 180
(internal quotation marks and
Erin is plaintiff's estranged wife, Noah is
Erin's brother, and Kyli is Erin's sister.
Fidelity Investments
was plaintiff's former employer and Erin's employer.
None of
these defendants can be considered a person acting under color of
state law, nor does the complaint allege anything as states a
colorable claim against them under
§
1983.
Plaintiff's claims
against Erin, Noah, Kyli, and Fidelity Investments, if any such
claims exist, would arise solely under Texas law.
D.
Shannon and Whelchel
The only allegations directed to Shannon and Whelchel are as
follows:
Acts by this defendant that harmed me:
--malicious prosecution of a father, (me) that
defended his parental rights & possession of my
children. I reported my children missing to the
police twice on July 26th 2011. When I forcibly
entered my estranged wife's habitation and got
into a fight with my brother in law, I was charged
and prosecuted for burglary of a habitation with
intent to commit assault.
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Compl. at 3.1 (errors in original).
Because the only allegations
against Shannon and Whelchel concern actions taken in their role
as prosecutors in the Tarrant County District Attorney's office,
they "are absolutely immune from liability for initiating
prosecutions and other acts intimately related to the judicial
phase of the criminal process."
996 (5th Cir. 1989)
Johnson v. Kegans, 870 F.2d 992,
(internal quotation marks and citation
omitted); see also Boyd, 31 F.3d at 285.
Plaintiff also makes the conclusory allegation that Shannon
and Whelchel were involved in a cover-up and in obstructing
justice along with a state district judge who is not named as a
defendant.
Plaintiff alleges no facts to support such a claim
and thus fails to state any such claim for relief.
See Arnaud,
870 F.2d at 307.
E.
Allegations Against Jail Officers
Attached to the back of the complaint is a photocopy of a
document written by another inmate and filed by prisoners in
other cases describing actions by Officer Joseph Thornhill
("Thornhill"), who at the time was an employee of the Tarrant
County Correctional Facility/Tarrant County Jail.
At the top of
the first photocopied page plaintiff wrote that it is a statement
of abuse inflicted by Thornhill and by Officer Comer ("Comer"),
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Sgt. Olmos ("Olmos"), and Sgt. Doman ("Doman").
The court finds
no factual allegations sufficient to allege claims or causes of
action against Comer, Olmos, and Doman.
Even if such allegations
were present, Comer, Olmos, and Doman have not been named as
defendants in this action and plaintiff has failed to allege
anything as would state a claim against County based on any acts
of Comer, Olmos, and Doman.
Plaintiff has alleged facts which could state a claim
against Thornhill, allegations which are similar to those in
cases filed by other prisoners in the Tarrant County Jail.
However, Thornhill was not named as a defendant in this action,
and plaintiff has allege nothing as would impose liability on
County for Thornhill's acts.
The court is not considering the
allegations against Thornhill, Comer, Olmos, or Doman, as
alleging claims pertinent to any of the named defendants in this
action.
F.
Additional Filings By Plaintiff
Since filing his original complaint plaintiff has filed the
following two motions:
(1) motion to include additional
defendants, and (2) motion to include statement of plaintiff's
personal history and request for federal protective custody
("Motion for Personal History and Custody").
denying both motions.
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The court is
In the first motion plaintiff seeks to add as defendants
Roanoake Police Department, Denton County Sheriff's Office, and
Denton County District Attorney's Office.
Plaintiff's claims
against Roanoake Police Department would be considered claims
against the city of Roanoake, while claims against the Denton
County Sheriff's Office would be considered claims against Denton
County.
It is difficult to discern exactly what plaintiff is
trying to allege against these defendants.
However, as discussed
supra in section III.B., plaintiff has failed to allege anything
as would state a claim for municipal liability against those
entities.
Additionally, prosecutors in the Denton County
District Attorney's Office are immune from any claims arising
from their actions that are "intimately related to the judicial
phase of the criminal process."
Johnson v. Kegans, 870 F.2d 992,
996 (5th Cir. 1989).
As to the Motion for Personal History and Custody, the court
finds nothing therein as would entitle plaintiff to relief.
IV.
Order
Therefore,
The court ORDERS that plaintiff's motion to include
additional defendants and Motion for Personal History and Custody
be, and are hereby, denied.
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The court further ORDERS that all claims and causes of
action asserted by plaintiff, Kevin Roy Beckstrand, against
anyone in the above-captioned case be, and are hereby, dismissed
with prejudice pursuant to the authority of 28 U.S.C.
1915A (b) ( 1 ) .
SIGNED November 6, 2012.
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