Lowrey v. Wisch et al

Filing 9

Memorandum Opinion and Order: Therefore, The court ORDERS that all claims and causes of action asserted by plaintiff against defendants in this action be, and are hereby, dismissed pursuant to the authority of 28 U.S.C. 1915A(b). (Ordered by Judge John McBryde on 12/29/2016) (hth)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEX1S
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FORT WORTH DIVISION
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B 29 2016

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STEPHEN PIERCE LOWREY,

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Plaintiff,

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vs.

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NO. 4:16-CV-1045-A

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JUDGE SCOTT WISCH, ET AL.,

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Defendants.

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MEMORANDUM OPINION
and
ORDER

Now before the court for consideration is the complaint
filed in the above action by plaintiff, Stephen Pierce Lowrey,
naming as defendants Judge Scott Wisch ("Wisch") and the Texas
Board of Pardons and Paroles ("Board").
I.

Screening Under 28 U.S.C.§ 1915A
Plaintiff is presently incarcerated in the Alfred D. Hughes
Unit of the Texas Department of Criminal Justice in Gatesville,
Texas.

As a prisoner seeking redress from government officials,

plaintiff's complaint is subject to preliminary screening under
28 U.S.C.

§

1915A.

(5th Cir. 1998).

See Martin v. Scott, 156 F.3d 578, 579-80
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

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either in law or in fact.•
325 (1989).

Neitzke v. Williams, 490 u.s. 319,

A complaint fails to state a claim upon which relief

can be granted when, assuming that all the allegations in the
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).
In evaluating whether the complaint states a valid claim for
relief, the court construes the allegations of the complaint
favorably to the pleader.
(1975).

Warth v. Seldin, 422 u.s. 490, 501

However, the court does not accept conclusory

allegations or unwarranted deductions of fact as true, and a
plaintiff must provide more than labels and conclusions or a
formulaic recitation of the elements of a cause of action.
Twombly, 550 u.s. at 555; Tuchman v. DSC Commc•ns Corp., 14 F.3d
1061, 1067 (5th cir. 1994).
Having now considered the allegations in the complaint, the
court concludes that it should be dismissed in its entirety under
the provisions of 28 U.S.C.

§

1915A.

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II.

Allegations of Plaintiff's Complaint
As best the court can tell, plaintiff is complaining of
something that occurred either 20 or 33 years ago. Doc. 1 2 at
page 1 of Arguement [sic] and Authority. Plaintiff says that
Wisch, the judge of the 372nd Judicial District Court of Tarrant
County, Texas, has breached a plea agreement drafted and executed
in 1983. Plaintiff characterizes this as a breach of contract. He
then refers to a 1996 trial as being rife with errors and
violations of his rights. Doc. 2 at page 5 (Conclusion and Fact).
As for defendant Board, the form complaint filled out by
plaintiff says that in August 2016, he was called to talk to the
unit parole officer and was asked about his 1982 probation,
"[t]hus breaching the 1983 contract again." Doc. 1 at typewritten
fifth page. See also Doc. 2 at Ex. B (parole interview
acknowledgment) .
Plaintiff demands a jury trial and seeks damages of $1500
per day and $500 mental anguish per day from August 9, 1996,
through resolution of this case and a reversal of his criminal
case.' Doc. 1 at 4; Doc. 2 at 5-6 (Relief Requested).

'The "Doc. _" reference is to the number of the item on the docket in this action.
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To the extent plaintiff seeks reversal of a conviction, that relief must be pursued through the
filing of a petition under 28 U.S.C. § 2254.
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III.
Analysis
A.

Wisch
The law is clear that judges are absolutely immune for

actions taken in their judicial capacity. Pierson v. Ray, 386
U.S. 547, 553-54

(1967). Plaintiff is apparently complaining

about something that happened during the course of trial. In
addition, it appears that he may be complaining of actions taken
by Wisch when he was an assistant district attorney. In that
case, Wisch would also be entitled to immunity.

"[A]cts

undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course
of

[her] role as an advocate for the State, are entitled to the

protections of absolute immunity."
u.s. 259, 273

Buckley v. Fitzsimmons, 509

(1993). See also Boyd v. Biggers, 31 F.3d 279, 285

(5th Cir. 1994)

(per curiam); Brummett v. Camble, 946 F.2d 1178,

1181 (5th Cir. 1991) .
B.

Board
The Board, as a unit of state government, is entitled to

sovereign immunity under the Eleventh Amendment, which, absent
waiver, prohibits a federal court from hearing a claim against a
state and it agencies and instrumentalities, regardless of the
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nature of the relief sought or whether the claim is based on
federal or state law. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984). Texas has not waived its immunity;
accordingly, the claims against the Board are barred by the
Eleventh Amendment. Cox v. Texas, 354 F. App'x 901 (5th cir.
2009).
IV.
Order
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff against defendants in this action be, and
are hereby, dismissed pursuant to the authority of 28 U.S.C.
1915A(b).
SIGNED December 29, 2016.

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