Ramirez v. Abdal-Khallaq et al

Filing 13

Opinion and Order of Dismissal: For the foregoing reasons, all Ramirez's claims against Hamida A. Abdal-Khallaq, Mary Mankesi Panzu, and Michael B. Berger are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915A(b)(1) and 28 U .S.C. § 1915(e)(2)(B)(i) and (ii); Ramirez's claims for monetary damages against Michael Thomas, Joe Shannon Jr., and Dawn Newell Ferguson, are DISMISSED WITH PREJUDICE under authority of 28 U.S.C. § 1915A(b)(2) and 28 U.S.C. § 19 15(e)(2)(B)(iii); and all of Ramirezs claims against Tom Boetcher and T. S. O'Brien, and alternatively, all of Ramirez's claims against the remaining defendants are DISMISSED WITH PREJUDICE to being asserted again until the Heck v. Humphrey conditions are met, under authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g). (Ordered by Senior Judge Terry R Means on 2/21/2019) (mpw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ROBERT RAMIREZ,
(TDCJ No.01911664),

§
§
§
Plaintiff,
§
§
v.
§
§
HAMIDA A. ABDAL-KHALLAQ,et al., §
§
Defendants.
§

CIVIL ACTION No.4:17-CV-093-Y

OPINION and ORDER OF DISMISSAL
UNDER 28 U.S.C. §§ 1915A & 1915(e)(2)(B)
This

case

is

before

the

Court

for

review

of

pro-se

inmate/plaintiff Robert Ramirez’s pleading under the screening
provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). After review
and consideration of Plaintiff’s claims, the Court determines that
all

claims

must

be

dismissed

under

the

authority

of

these

provisions.

I.

BACKGROUND/PLEADING
In this suit, after he initially filed several pleadings,

plaintiff Ramirez filed a form civil-rights complaint in accordance
with this Court’s order to incorporate all of his claims into one
amended complaint.(Am. Complaint (doc.10); Order to File Amended
Complaint (doc. 9).) Thus, the live pleading subject to review is
Plaintiff’s

form

amended

civil-rights

complaint

with

pages

attached. (Am. Complaint (doc. 10).) The amended complaint names as
defendants attorneys Hamida A. Abdal-Khallaq, Mary Mankesi Panzu,

and Michael B. Berger; Fort Worth police detectives T.S. O’Brien
and Tom Boetcher; Joe Shannon, former district attorney, Tarrant
County,

Texas;

attorney,
Criminal

and

Tarrant
District

Dawn

Newell

County,
Court

Ferguson,

Texas;

assistant

Michael

Four,

Number

and

Tarrant

district

Thomas,
County,

judge,
Texas.1

(Id.(doc. 10) at 3, 7-16.)
Ramirez
preparing

complains

reports

in

of

the

support

actions
of

his

of

the

arrest

detectives

and

in

prosecution,

complains of the prosecutors in charging and taking him to trial,
complains of the actions of three different appointed defense
counsel, and complains of the actions of Presiding Judge Mike
Thomas. (Id.)
Ramirez recites that he got into a fight with Ricky Soto, who
later died, and that he was initially investigated and charged with
murder. (Id. (doc. 10) at 7.) Although initially charged with
murder, Ramirez was later re-indicted on a charge of aggravated
assault with serious bodily injury. (Id. (doc. 10) at 8, 12.)
Ramirez contends that Detective O’Brien violated his Fifth, Sixth,
and Fourteenth Amendment rights by falsely arresting him and
preparing a frivolous police report in support of the initial
murder charge.

(Id.

(doc.

10)

at

1

7–8.)

Ramirez

alleges

that

Although Ramirez initially also listed Tarrant County Assistant District
Attorney Brooke Erica Panuthos as a defendant in the original complaint, he
dropped his claims against this defendant in the amended complaint. The clerk of
Court is directed to note on the docket that defendant Panuthos was dismissed
from the suit by the filing of the amended complaint.

2

Detective

Boetcher

violated

his

Fifth,

Sixth,

and

Fourteenth

Amendment rights by “misleading the whole investigation by lieing
[sic] in this police report and investigating the wrong person . .
..” (Id. (doc. 10) at 3.) He contends that the appointed attorneys
violated his rights under the First, Fifth, Sixth, and Fourteenth
Amendments

for

failing

to

allow

him

to

see

video

of

his

interrogation, preventing his right to testify at trial, failing to
meet with him, failing to have a trial strategy, failing to crossexamine a state witness, and failing to send him a trial transcript
upon

his

contends

post-conviction
that

prosecutors

request.(Id.(doc.
Joe

Shannon

Jr.

10)

at

8–11.)

and

Dawn

He

Ferguson

violated his rights under the First, Fifth, Sixth and Fourteenth
Amendments by first indicting him for murder, then not trying him
on that charge due to lack of a witness, but re-indicting him on
the charge of aggravated assault causing serious bodily injury, and
seeking a continuance when they were unable to secure a prosecution
witness. (Id. (doc. 10) at 12.) Ramirez contends that Judge Thomas
violated his First, Fifth, Sixth, and Fourteenth Amendment rights
by depriving him of the right to be heard at trial, not explaining
his prior

convictions

to

the

jury,

subjecting

him

to

double

jeopardy, convicting him without sufficient evidence of his harming
Soto, failing to correctly apply the law, and violating his right
to a speedy trial. (Id. (doc. 10) at 15.) Ramirez seeks as relief
from this Court a declaration that his constitutional rights were

3

violated, an “injunction ordering defendants to stop all illegal
actions,” and compensatory and punitive damages.(Id. at 17.)
Relevant to the Court’s review of this civil-rights case is
the fact that Robert Ramirez also filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 in this district, challenging
the conviction that arose out of the same conduct made the basis of
this civil suit. See Ramirez v. Davis, No. 4:17-CV-733-A (N.D. Tex.
Dec. 18, 2018 Order and Judgment). This Court takes judicial notice
of the records of the habeas-corpus case in this district. See Fed.
R. Evid. 201(b)(2) and (c)(1).
In

the

habeas

action,

Ramirez

acknowledges

that

he

was

convicted on February 12, 2014, of aggravated assault causing
serious bodily injury in Criminal District Court Number Four,
Tarrant County, Texas, in cause number 1346024R. Ramirez v. Davis
No. 4:17-CV-733-A, (Petition (doc. 1) at 2-3). The docket of the
habeas case included extensive copies of the state-court records
relating to Ramirez’s charges and the conviction for aggravated
assault causing serious bodily injury, Ramirez’s appeal, and the
post-conviction writ history in state court. Ramirez v. Davis,
No.4:17-CV-773-A, (Administrative Record (docs. 15-1 through 15-20;
16-1 through 16-11)). That record includes a copy of the original
indictment for murder (with a habitual offender notice) as case
number 1274228, the later indictment for aggravated assault causing
serious bodily injury (with a habitual offender notice) as case

4

number 1346024R, an order dismissing case number 1274228 based upon
re-indictment in case number 1346024R, and the February 12, 2014
Judgment of Conviction in case number 1346024R.(Id. (doc. 15-16 at
11–12; doc. 15-16 at 6–7; doc.15–17 at 55; doc.15-17 at 151-52).2
The judgment shows that a jury found Ramirez guilty of aggravated
assault causing serious bodily injury, found him guilty of the
habitual-offender enhancement, and sentenced him to 25 years’
imprisonment. (Id. (doc. 15-17 at 151–52.) The court reviewing the
§ 2254 habeas petition ultimately dismissed the case as timebarred. See Ramirez v. Davis, No. 4:17-CV-733-A (N.D. Tex. Dec. 18,
2018 Order and Judgment).

II.

SCREENING UNDER § 1915A and § 1915(e)(2)(B)
As noted, as Ramirez is a prisoner seeking redress from an

officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See
Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam).
Because he is proceeding in forma pauperis, his complaint is also
2

The Memorandum Opinion and Order provided a brief summary of Ramirez’s post
conviction history: “Petitioner appealed his conviction, but the Second District
Court of Appeals of Texas affirmed the trial court's judgment.(Mem. Op. 15.)[see
Ramirez v. Texas, No.02-14-062-CR, 2015 WL 2437873 (Tex. App.—Fort Worth 2015,
no writ)]. Although the Texas Court of Criminal Appeals extended Petitioner's
time to file a petition for discretionary review through October 21, 2015, he did
not do so. (Docket Sheet 2.) Petitioner also filed two state habeas-corpus
applications challenging his conviction. The first, filed on June 30, 2016, was
dismissed for noncompliance with the state's form requirements. (SHR02 2 &
Action Taken.) The second, filed on October 18, 2016, was denied on May 17, 2017,
by the Texas Court of Criminal Appeals without written order on the findings of
the trial court. (SHR03 2 & Action Taken.)” Ramirez v. Davis, No.4:17-CV-733-A
(Dec. 18, 2018 Order)(footnotes omitted).

5

subject to screening under § 1915(e)(2)(B). Both § 1915A(b) and §
1915(e)(2)(B) provide for sua sponte dismissal of the complaint, or
any

portion

thereof,

if

the

Court

finds

it

is

frivolous

or

malicious, if it fails to state a claim upon which relief may be
granted, or if it seeks monetary relief against a defendant who is
immune from such relief.
A complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). A claim lacks an arguable basis in law when it is “based on
an indisputably meritless legal theory.” Id. at 327. A claim that
falls under the rule announced in Heck v. Humphrey, 512 U.S. 477
(1994), “is legally frivolous unless the conviction or sentence at
issue has been reversed, expunged, invalidated, or otherwise called
into question.” Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
A complaint fails to state a claim upon which relief may be granted
when it fails to plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). To avoid dismissal for failure to state a claim, plaintiffs
must allege facts sufficient to “raise the right to relief above
the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and
conclusions” nor “a formulaic recitation of the elements of a cause
of action” suffice to state a claim upon which relief may be
granted. Id.
6

III. ANALYSIS
(A). Claims Barred by Absolute Immunity
(1). Judicial Immunity
With regard to Ramirez’s claims against the Honorable Michael
Thomas, judges are absolutely immune from claims for damages
arising out of acts performed in the exercise of their judicial
functions. Mireless v. Waco, 502 U.S. 9, 11 (1991)(citing Forrester
v. White, 484 U.S. 219, 227-229 (1988) and Stump v. Sparkman, 435
U.S. 349, 360

(1978)); see also, Boyd v. Biggers, 31 F.3d 279, 284

(5th Cir. 1994). Absolute judicial immunity can be overcome only if
the plaintiff shows that the complained-of actions were nonjudicial
in nature or that the actions were taken in the complete absence of
all jurisdiction. Mireless, 502 U.S. at 11; Boyd, 31 F.3d at 284.
Because the complained-of conduct by Judge Thomas was judicial in
nature and was undertaken pursuant to the jurisdiction provided to
Criminal District Court Number Four, Judge Thomas is entitled to
absolute immunity from any monetary damages claims, and such claims
will be dismissed.
(2). Prosecutorial Immunity
Ramirez asserts claims against former District Attorney Joe
Shannon Jr. and fellow prosecutor Dawn Newell Ferguson arising from
their prosecution of him. (Am. Complaint (doc. 10) at 12–14.) But
Shannon and Ferguson are entitled to absolute immunity for any
claims for monetary damages asserted by Ramirez. The Supreme Court
7

has

consistently

held

that

acts

undertaken

by

a

government

prosecutor in the course of his role as an advocate for the
government

are

cloaked

in

absolute

immunity.

Buckley

v.

Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler v. Pachtman, 424
U.S. 409, 431 (1976). The Supreme Court has further explained that
absolute immunity is afforded based upon whether the prosecutor is
acting “in his role as advocate for the State.” Imbler, 424 U.S. at
431 n. 33. Here, even assuming Plaintiff’s allegations against Joe
Shannon Jr. and Dawn Newell Ferguson are true, these defendants
would have taken such action in their roles as prosecutors on
behalf of the State of Texas. Thus, defendants Shannon and Ferguson
are entitled to absolute prosecutorial immunity from any claim for
monetary damages, and such claims must be dismissed.
(B). No Color of Law
To assert a claim for violation of federal constitutional
rights under 42 U.S.C. § 1983, a plaintiff must set forth facts in
support of both of its elements:(1) the

deprivation of a right

secured by the Constitution or laws of the United States; and (2)
the deprivation was imposed by a person acting under color of law.
See West v. Atkins, 487 U.S. 42, 48 (1988)(citing cases); Resident
Council of Allen Parkway Village v. U.S. Department of Housing and
Urban Development, 980 F.2d 1043, 1050 (5th Cir.1993). As to
Ramirez’s allegations against his three appointed attorneys, Hamida
A. Abdal-Khallaq, Mary Mankesi Panzu, and Michael B. Berger,
8

Ramirez has failed to satisfy the second element. Ramirez has
failed to show that these private attorneys acted under color of
law. Because an attorney, whether private or appointed, owes his
only duty to the client and not to the public or the state, his
actions are not chargeable to the state. See Thompson v. Aland, 639
F. Supp. 724, 728 (N.D. Tex.1986) (citing Polk County v. Dodson,
454 U.S. 312, 318 (1981)); see also Pete v. Metcalfe, 8 F.3d 214,
216-17 (5th Cir. 1993). Furthermore, Ramirez has made no allegation
that these attorneys were acting on behalf of the government.
Ramirez cannot show that his attorneys were acting under color of
law, so any claim for violation of his constitutional rights
asserted through 42 U.S.C. § 1983 against these three defendants
must be dismissed.
(C). Application of Heck v. Humphrey
With regard to the claims against Detective Boetcher and
Detective O’Brien, and as an alternative ground for dismissal of
the claims against the defendants already dismissed, the Court
considers application of the doctrine of Heck v. Humphrey, 512 U.S.
477 (1994). In the Heck case, the Supreme Court held that when a
successful

civil-rights

action

would

necessarily

imply

the

invalidity of a plaintiff’s conviction or sentence, the claim must
be dismissed unless the plaintiff demonstrates that the conviction
or

sentence

has

been

reversed

on

direct

appeal,

expunged

by

executive order, declared invalid by a state tribunal authorized to
9

make such a determination, or called into question by a federal
court’s issuance of a writ of habeas corpus under 28 U.S.C. § 2254.
Id.

at

486-87.

termination

of

A

plaintiff

his

does

available

so

by

state,

achieving
or

“favorable

federal

habeas,

opportunities to challenge the underlying conviction or sentence.”
Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam). “[T]he
Heck determination depends on the nature of the offense and of the
claim.” Arnold v. Slaughter, 100 F. App’x. 321, 323 (5th Cir. 2004)
(citation omitted). Although the Heck opinion involved a bar to
claims for monetary damages, a dismissal of a claim for injunctive
and/or declaratory relief may also be made pursuant to Heck. See
Reger v. Walker, 312 F. App’x. 624, 625 (5th Cir. 2009)(noting that
claims, “whether for damages, declaratory judgment, or injunctive
relief” are not cognizable in a § 1983 action because they imply
the invalidity of conviction); see also Clarke v. Stadler, 154 F.3d
186, 190-91 (5th Cir. 1998)(en banc)(holding that a claim for
prospective injunctive relief that would imply the invalidity of a
prisoner's conviction may be dismissed without prejudice subject to
the rule of Heck v. Humphrey).
Ramirez’s

claims

in

this

federal

civil

suit

that

the

detectives violated his rights under the Fourth Amendment by
seizing evidence and falsifying records. He also claims violations
of due process of law by several defendants, malicious prosecution,
and denial of his right to effective assistance of counsel.(Am.
10

Complaint (doc. 10) at 3, 6-17.) A favorable ruling on such claims
in

this Court

would

necessarily

imply

the

invalidity

of

his

conviction in the state criminal case. See e.g., Conlan v. King, et
al., 682 F. App’x 345, 345–46 (5th Cir. 2017)(claims of false
arrest, forced self-incrimination, and illegal seizure of evidence
barred by Heck); Legate v. Garcia, 582 F. App’x 287, 288 (5th Cir.
2014)(“[A]ny claim that Legate was wrongly convicted based on due
process violations at trial would necessarily imply that his
conviction is invalid”)(citations omitted)); Villegas v. Galloway,
et al., 458 F. App’x 334, 337 (5th Cir. 2012)(civil-rights claims
such

as

ineffective

assistance

of

counsel,

use

of

perjured

testimony and fabricated evidence, and suppression of favorable
evidence barred by Heck); Shaw v. Harris, 116 F. App’x 499, 500
(5th Cir. 2004); Evans v. Mendoza, No.4:05-CV-759-Y, 2006 WL
3438627,

at

*2

(N.D.

Tex.

Nov.

14,

2006)(Means,

J.)(claims

challenging unlawful seizure of evidence later used in prosecution
of plaintiff not cognizable under Heck).
But

Ramirez

has

not

shown

that

his

conviction

has

been

reversed or set aside in any of the manners listed in Heck v.
Humphrey. As noted above, a review of the state-court records
provided in Ramirez’s suit seeking relief under § 2254, as well as
that

suit

itself,

reveals

that

Ramirez

has

to

date

been

unsuccessful in his challenges to his conviction. As Ramirez has
not shown that his conviction has been invalidated under Heck, his
11

claims, whether they be for monetary damages, injunctive relief, or
for declaratory relief, are not cognizable and must be dismissed.
See Heck, 512 U.S. at 487-88; see also Reger, 312 F. App’x. at 625.
Because Ramirez has failed to make a showing that his conviction
has been set aside in the manner listed in Heck, his claims under
§ 1983 are not cognizable at this time. The claims are “legally
frivolous” within the meaning of 28 U.S.C. § 1915 and should be
dismissed “with prejudice to their being asserted again until the
Heck conditions are met.” Johnson v. McElveen, 101 F.3d 423, 424
(5th Cir. 1996).

IV.

CONCLUSION and ORDER
For the foregoing reasons, all Ramirez’s claims against

Hamida A. Abdal-Khallaq, Mary Mankesi Panzu, and Michael B. Berger
are DISMISSED

WITH

PREJUDICE

under

authority

of

28

U.S.C.

§

1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); Ramirez’s
claims for monetary damages against Michael Thomas, Joe Shannon
Jr., and Dawn Newell Ferguson, are DISMISSED WITH PREJUDICE under
authority

of

28

1915(e)(2)(B)(iii);

U.S.C.
and

all

§

1915A(b)(2)
of

Ramirez’s

and

28

claims

U.S.C.
against

§
Tom

Boetcher and T. S. O’Brien, and alternatively, all of Ramirez’s
claims

against

the

remaining

defendants

are

DISMISSED

WITH

PREJUDICE to being asserted again until the Heck v. Humphrey

12

conditions are met,3 under authority of 28 U.S.C. § 1915A(b)(1) and
28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
This dismissal will count as a “strike” or “prior occasion”
within the meaning 28 U.S.C. § 1915(g).
SIGNED February 21, 2019.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

3

See Johnson, 101 F.3d at 424.

13