Nyabwa v. Warden Pam Lynch State Jail
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint, vacating 6 Order Referring Case to Magistrate Judge, denying 5 MOTION for Default Judgment against Warden Pam Lynch State Jail, denying 8 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
February 22, 2017
David J. Bradley, Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
COLLINS 0. NYABWA,
WARDEN, PAM LYCHNER STATE JAIL,
CIVIL ACTION NO. H-16-2638
MEMORANDUM OPINION AND ORDER
Former state inmate Collins 0. Nyabwa, has filed a 42 U.S.C.
1983 Complaint and Brief in Support Thereof ("Complaint")
Entry No. 1), alleging that he was wrongly imprisoned by the Warden
of the Pam Lychner State Jail facility.
Nyabwa has also filed a
Motion for Default Judgment (Docket Entry No. 5) and a Motion for
Summary Judgment on his own behalf (Docket Entry No. 8).
scrutinize the claims and dismiss the Complaint,
in whole or in
part, if it determines that the Complaint "is frivolous, malicious,
or fails to state a claim upon which relief may be granted" or
"seeks monetary relief from a defendant who is immune from such
1915 (e) (2) (B).
After considering all of the
pleadings, the court will vacate the Order entered on November 1,
case to a
No. 6), and will dismiss this case for the reasons explained below.
"improper photography" in violation of
Penal Code. 1
or broadcast by video "a visual
without the other person's consent;
21.15 (b) (1)
the Texas improper
image of another at a
with intent to
arouse or gratify the sexual desire of any person."
21.15 (b) (1) of the Texas
At the time of those charges
photography statute made
(West 2011) .
Nyabwa challenged the constitutionality of the Texas improper
photography statute by filing a pretrial writ of habeas corpus,
That decision was affirmed by the
which the trial court denied.
state court of appeals, which concluded that the statute was not
See Ex parte Nyabwa, 366 S.W.3d 719 (Tex. App.
-Houston [14th Dist.] 2011)
The Texas Court of Criminal Appeals
See Ex parte Nyabwa,
366 S.W.3d 710
See Petition for a Writ of Habeas Corpus by a Person in State
Custody ("Habeas Petition"), Docket Entry No. 1, p. 2, in Civil
No. H-12-1152 (S.D. Tex.).
On July 29, 2011, Nyabwa entered a guilty plea to the improper
photography charges against him and received a
He did not pursue an appeal from the conviction. 3
From August of 2011 through July of 2012 Nyabwa was imprisoned
at the Pam Lychner State Jail facility in Humble, Texas,
result of his improper photography conviction. 4
On September 17,
2014, the Texas Court of Criminal Appeals found the Texas improper
photography statute unconstitutional.
S.W.3d 325 (Tex. Crim. App. 2014).
See Ex parte Thompson, 442
On August 23, 2016, Nyabwa's
See Nyabwa v.
(Docket Entry Nos. 95, 96).
declared unconstitutional and that his conviction was set aside,
Nyabwa now argues that he was falsely imprisoned by the Warden of
the Pam Lychner State Jail facility from August of 2011 to July of
Invoking 42 U.S. C.
damages for his wrongful confinement. 6
Id. at 2-3.
Id. at 3.
Complaint, Docket Entry No. 1, p. 3.
Id. at 7.
$5 million in
Nyabwa concedes in his Complaint that he has filed a previous
unsuccessful civil action against the Warden of the Pam Lychner
alleging the same claim of false imprisonment. 7
that case the district court dismissed Nyabwa's claim for damages
as barred by the rule in Heck v. Humphrey, 114 S. Ct. 2364, 2372
(1994), because his underlying conviction for improper photography
had not yet been set aside.
See Nyabwa v. Warden,
State Jail, Civil No. H-16-1643 (S.D. Tex. June 30, 2016)
In the alternative,
the district court
dismissed Nyabwa's Complaint because he failed to state a valid
claim for false imprisonment.
Nyabwa failed to articulate a claim of false imprisonment under
state law or the Fourteenth Amendment).
Nyabwa's appeal from that
decision was dismissed on his own motion.
See Nyabwa v. Warden,
Pam Lychner State Jail, No. 16-20436 (5th Cir. Sept. 16, 2016).
Since that time other courts have also dismissed Nyabwa' s
See Nyabwa v.
(S.D. Tex. Feb. 1, 2017)
(Docket Entry No. 23, pp. 6-9); Nyabwa v.
Unknown Jailers at CCA,
Civil No. H-16-0782
United States, No. 1:16-1056, 2017 WL 80076, at *7
(Ct. Fed. Cl.
officials was not improper because it was based on his criminal
conviction, which was not vacated until 2016,
well after he was
released from custody) .
The court need not repeat at length the legal analysis on
which these prior rulings are based.
It is sufficient to note that
"[t]he essential elements of false imprisonment are:
(2) without consent; and (3) without authority of law."
Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
(quoting Sears, Roebuck
19 8 5) ) .
Co. v. Castillo,
693 S.W.2d 374,
"If an arrest or detention is executed under
process which is legally sufficient in form and duly issued by a
court of competent jurisdiction, an action for false imprisonment
will not lie."
James v. Brown,
637 S.W.2d 914,
imprisonment claim against prison officials
where the plaintiff's imprisonment "was the result of a judgment of
conviction by a
Nyabwa's conviction for improper photography was not vacated until
he cannot show that the one-year sentence of imprisonment
that he received in 2011 or his subsequent detention by CCA from
July of 2012 through November of 2013 was without authority of law;
and he cannot otherwise establish a claim for false imprisonment
against the officials who held him in custody pursuant to the
See James, 637 S.W.2d at 918; see also United States
ex rel. Bailey v. Askew,
486 F.2d 134,
(5th Cir. 1973)
(noting that "a jailer cannot be held liable for an error
in an order of commitment which is patently proper")
omitted); Contreras v. Schiltgen, 122 F.3d 30, 33 (9th Cir. 1997)
(observing that immigration officials are "entitled to rely on the
conviction as a basis for custody and eventual deportation" until
the conviction is "successfully overturned")
Based on this record,
the Complaint in this case will be
See Henthorn v.
meritless and have no arguable basis in law.
Swinson, 955 F.2d 351, 352
(5th Cir. 1992)
(A complaint filed in
forma pauperis may be dismissed sua sponte as frivolous
lacks an arguable basis in law or fact or if there is no realistic
chance of ultimate success.")
(citation omitted) .
To the extent
that Nyabwa repeats allegations in this case that were raised by
him previously in another civil action that he filed against the
See Pittman v. Moore, 980 F.2d 994, 994 (5th Cir. 1993)
(per curiam) .
reflect that Nyabwa has
unsuccessful civil actions in the federal courts stemming from his
conviction for improper photography and his allegations of false
Dec. 30, 2015); Nyabwa v. Unknown Jailers at CCA, Civil No. H-160782 (S.D. Tex. Jan. 27, 2017); Nyabwa v. Warden, Pam Lychner State
United States, No. 1:16-1056 (Ct. Fed. Cl. Jan. 12, 2017); Nyabwa
v. Warden, Pam Lychner State Jail, Civil No. H-16-1643 (S.D. Tex.
June 30, 2016); and Nyabwa v. CCA, Civil No. H-16-1644 (S.D. Tex.
Feb. 1, 2017).
Several similar actions remain pending:
and Nyabwa v.
Sheriff, Civil No. H-17-0028 (S.D. Tex.).
Nyabwa is warned that he
will face sanctions, including monetary penalties, if he continues
to abuse judicial resources by filing repetitive, meritless cases
in the federal courts.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Order referring this case to a United States
Magistrate Judge (Docket Entry No. 6) is VACATED.
The 42 u.s.c. § 1983 Complaint filed by Collins 0.
Nyabwa (Docket Entry No. 1) is DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e) (2) (B) as
frivolous and malicious.
The Motion for Default Judgment (Docket Entry
No. 5) and Motion for Summary Judgment (Docket
Entry No. 8) filed by Nyabwa are DENIED.
Nyabwa is WARNED that he will face sanctions,
including monetary penalties, if he continues to
abuse judicial resources by filing repetitive,
meritless cases in the federal courts.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
SIGNED at Houston, Texas, on this 22nd day of February, 2017.
~ SIM LAKE
UNITED STATES DISTRICT JUDGE
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