Nyabwa v. Warden Pam Lynch State Jail

Filing 9

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

ENTERED
February 22, 2017
David J. Bradley, Clerk

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

COLLINS 0. NYABWA,
Plaintiff,
v.

WARDEN, PAM LYCHNER STATE JAIL,
Defendant.

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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")

(Docket

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).
Nyabwa

proceeds

in

forma

pauperis,

the

court

scrutinize the claims and dismiss the Complaint,

is

Because

required

to

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
relief."

28 U.S.C.

§

1915 (e) (2) (B).

After considering all of the

pleadings, the court will vacate the Order entered on November 1,

2016,

referring this

case to a

Magistrate Judge

(Docket Entry

No. 6), and will dismiss this case for the reasons explained below.
I.

Nyabwa

was

charged

Background

in

state

court

"improper photography" in violation of
Penal Code. 1

criminal

or broadcast by video "a visual

location
(A)

it a

that

is

not

a

bathroom

or

without the other person's consent;

three

§

21.15 (b) (1)

of

the Texas improper

offense

to photograph,

image of another at a
private
and

(B)

dressing

room:

with intent to

arouse or gratify the sexual desire of any person."
Code

counts

21.15 (b) (1) of the Texas

At the time of those charges

photography statute made
record,

§

with

Tex. Penal

(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
unconstitutional.

See Ex parte Nyabwa, 366 S.W.3d 719 (Tex. App.

-Houston [14th Dist.] 2011)
refused
decision.

Nyabwa' s

petition

The Texas Court of Criminal Appeals
for

discretionary

See Ex parte Nyabwa,

366 S.W.3d 710

review
(Tex.

from

that

Crim. App.

2012) .

1

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.).
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On July 29, 2011, Nyabwa entered a guilty plea to the improper
photography charges against him and received a
sentence. 2

one-year prison

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

as the

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).
improper photography
corpus review.
Tex.)

See Ex parte Thompson, 442

On August 23, 2016, Nyabwa's

conviction was

See Nyabwa v.

vacated on

federal

Civil No.

H-12-1152

Davis,

habeas
(S.D.

(Docket Entry Nos. 95, 96).
Noting

that

the

Texas

improper

photography

statute

was

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
2012. 5

Invoking 42 U.S. C.

§

1983,

Nyabwa seeks

damages for his wrongful confinement. 6

2

Id. at 2-3.

3

Id. at 3.

4

Complaint, Docket Entry No. 1, p. 3.

5

Id.

6

Id. at 7.
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$5 million in

II.

Discussion

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

State Jail,

In

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,

Pam Lychner

State Jail, Civil No. H-16-1643 (S.D. Tex. June 30, 2016)
Entry No.

5,

pp.

3-4).

In the alternative,

(Docket

the district court

dismissed Nyabwa's Complaint because he failed to state a valid
claim for false imprisonment.

See id.

at 3-4

(concluding that

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
claims of

false

imprisonment

improper photography,

stemming

which also

from his

resulted

conviction for

in his

detention by

immigration officials.

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

2017)

(Docket

7

Entry

No.

31,

pp.

Id.
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CCA,

5-7);

Civil No.

(S.D.
see

H-16 -1644

Tex. Jan.

also

Nyabwa

27,
v.

United States, No. 1:16-1056, 2017 WL 80076, at *7
Jan.

6,

2017)

(noting

that

Nyabwa's

detention

(Ct. Fed. Cl.

by

immigration

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:
detention;

(1) willful

(2) without consent; and (3) without authority of law."

Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995)
375

(quoting Sears, Roebuck
(Tex.

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,

accord

Metcalfe,

Pete

(rejecting a

v.

false

8

637 S.W.2d 914,

F. 3d

214,

218-19

918
(5th

(Tex. 1982);
Cir.

1993)

imprisonment claim against prison officials

where the plaintiff's imprisonment "was the result of a judgment of
conviction by a

court

with

jurisdiction over

him") .

Because

Nyabwa's conviction for improper photography was not vacated until
2016,

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

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against the officials who held him in custody pursuant to the
conviction.

See James, 637 S.W.2d at 918; see also United States

ex rel. Bailey v. Askew,
curiam)

486 F.2d 134,

135

(5th Cir. 1973)

(per

(noting that "a jailer cannot be held liable for an error

in an order of commitment which is patently proper")

(citation

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,
dismissed

as

legally

(citation omitted).

the Complaint in this case will be

frivolous

because

the

allegations

See Henthorn v.

meritless and have no arguable basis in law.
Swinson, 955 F.2d 351, 352

(5th Cir. 1992)

are

(A complaint filed in

forma pauperis may be dismissed sua sponte as frivolous

"if it

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
Warden of

the

Pam

Lychner

State

Jail,

the

Complaint

is

also

malicious.

See Pittman v. Moore, 980 F.2d 994, 994 (5th Cir. 1993)

(per curiam) .
Court

records

reflect that Nyabwa has

filed at

least six

unsuccessful civil actions in the federal courts stemming from his

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conviction for improper photography and his allegations of false
imprisonment:

Nyabwa v.

Keller,

Civil No.

1:15-0735

(W.D. Tex.

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
Jail,

Civil No.

H-16-0786

(S.D.

Tex.

May 23,

2016);

Nyabwa v.

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:

United States,

Civil No.

Civil

No.

H-16-3792

H-16-0783

(S.D.

Tex.);

(S.D.

Tex.);

and Nyabwa v.

Sheriff, Civil No. H-17-0028 (S.D. Tex.).

Nyabwa v.

Nyabwa v.
Harris

CCA,

County

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.
III.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

The Order referring this case to a United States
Magistrate Judge (Docket Entry No. 6) is VACATED.

2.

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.

3.

The Motion for Default Judgment (Docket Entry
No. 5) and Motion for Summary Judgment (Docket
Entry No. 8) filed by Nyabwa are DENIED.
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4.

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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