Zahorik v. Trott et al
Filing
138
OPINION AND ORDER granting 134 SUPPLEMENT to Motion to Dismiss for Failure to State a Claim regarding Plaintiff's Fourteenth Amendment claims and that Plaintiff Vincent Zahorik's action is DISMISSED(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)
United States District Court
Southern District of Texas
ENTERED
June 27, 2016
IN THE UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
VINCENT ZAHORIK
Plaintiff,
vs.
TRACY TROTT, et al.,
Defendants.
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CIVIL ACTION NO. G-13-248
OPINION AND ORDER
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I
Before the Court, with the consent of the Parties, is Defendants Kylen, Pilsner, Gomez,
and Porretto's Supplement to their Motion to Dismiss (Dkt. No. 134) to which Plaintiff Vincent
Zahorik, despite having been given ample time, filed no response.
Having considered the
pleadings, 1 the Defendants' Motion to Dismiss, and the supplemental briefing, the Court now
issues this Opinion and Order.
Plaintiff Vincent Zahorik (Zahorik) filed this civil rights complaint on July 10, 2013,
against, inter alios, these Defendants. Zahorik alleged numerous violations of his constitutional
rights, however, only his Fourteenth Amendment claims remain. (Dkt. No. 1 at 42, 43, 46). The
Fourteenth Amendment provides that " [n] o State shall ... deprive any person of life, liberty, or
property, without due process of law." U.S. CONST. amend. XIV. It is the constitutional
provision that guarantees due process rights against state actors. See Jones v. City ofJackson, 203
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The Court may properly consider all the documents attached to pleading.
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F.3d 875, 880 (5th Cir.2000) (citing DeShaney v. Winnebago Co. Dep'tofSoc. Servs., 489 U.S.
189, 196 ( 1989)). "Prohibition against improper use of the 'formal [constraints] imposed by the
criminal process' lies at the heart of the liberty interests protected by the Fourteenth Amendment
due process clause." Jones, 203 F.3d at 880-81 (quoting Board of Regents v. Roth, 408 U.S.
564, 575 (1972)).
Defendants contend that Zahorik's Fourteenth Amendment claims are foreclosed by the
decisions in Albright v. Oliver, 510 U.S. 266, 272 (1994) and Castellano v. Fragozo, 352 F.3d
939, 942, 953 (5th Cir.2003). (Dkt. Nos. 51, 134). The Court agrees. It is well-settled that there
is no "substantive right under the Due Process Clause of the Fourteenth Amendment to be free
from criminal prosecution except upon probable cause." Albright v. Oliver, 510 U.S. 266, 268
(1994). Although the holding in Albright is not without exception, 2 under Zahorik's version of
the events, the exception simply has no application. On the contrary, while Zahorik might view
the evidence differently, his pleadings are devoid of any allegations that Defendants fabricated or
falsified any evidence used to secure his arrest and conviction. See Webb v. Livingston, 618
Fed.Appx. 201, 207 (5th Cir. 2015) (explaining that "[t]o overcome the [qualified] immunity
defense, the complaint must allege facts that, if proven, would demonstrate that [defendants]
violated clearly established statutory or constitutional rights"). Defendants' Motion to Dismiss
Zahorik's Fourteenth Amendment claims is, therefore, GRANTED.
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Courts have determined that an exception exists when police officers intentionally manufacture
or fabricate evidence to support a finding of probable cause and knowingly use that evidence along with
perjured testimony to obtain a wrongful conviction of a criminal defendant. See Castellano v. Fragozo,
352 F.3d 939, 942 (5th Cir. 2003); Cuardra v. Houston lndep. Sch. Dist., 626 F.3d 808 (5th Cir. 2010);
Cole v. Carson, 802 F.3d 752 (5th Cir. 2015).
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CONCLUSION
Accordingly, for all the foregoing reasons, it is the ORDER of the Court that Defendants'
Supplement to their Motion to Dismiss regarding Plaintiffs Fourteenth Amendment claims is
GRANTED; and that Plaintiff Vincent Zahorik's action is DISMISSED.
IT IS SO ORDERED.
DONE at Galveston, Texas, this
2..'1/f,day of June, 2016.
JOH
UN E
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R
STATES MAGISTRATE JUDGE
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