Phinney v. Lt. A. Espinoza

Filing 7

MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIAM E. PHINNEY,
TDCJ #02102386,
Plaintiff,

v.
LT. A. ESPINOZA,
Defendant.

January 10, 2017
David J. Bradley, Clerk

§
§
§
§
§

CIVIL ACTION NO. H-16-3535

§
§
§
§
§

MEMORANDUM OPINION AND ORDER

The plaintiff, William E. Phinney (TDCJ #02102386), has filed
a

Prisoner's

("Complaint")

Civil

Rights

(Docket

Entry

Complaint
No.

under

1).

42

U.S.C.

Because

§

plaintiff

1983
is

incarcerated, the court is required to 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 relief."

28 U.S.C.

§

1915A(b).

After considering all of the pleadings, the court concludes that
this case must be dismissed for the reasons explained below.

I.

Background

When Phinney filed the Complaint in this case he was in the
custody of the Harris County Jail, having been arrested on theft
charges
1

by

officers

with

the

Pasadena

Police

Department. 1

Complaint, Docket Entry No. 1, p. 3. See also Attachment to
Prisoner's Civil Rights Complaint, Docket Entry No. 1-1, pp. 1-4,
(continued ... )

Subsequently,

Phinney

was

convicted

of

those

charges

and

is

currently incarcerated by the Texas Department of Criminal Justice. 2
Phinney has filed this civil action against Lieutenant A.
Espinoza
Division. 3

of

the

Pasadena

Phinney

Police

contends

Department

that

he

and

Internal
his

Affairs

daughter

mistreated during the course of his arrest for theft. 4

were

Phinney

contacted Espinoza to report "illegal conduct" by the arresting
officers, but Espinoza failed to prepare a police report regarding
the

incident. 5

Phinney contends,

violated his civil rights. 6

therefore,

that Espinoza has

Phinney seeks a criminal investigation

of the officers who arrested him. 7
II.
Phinney filed a
arrested him. 8

Discussion

separate lawsuit against the officers who

That case was dismissed on October 24, 2016, after

1

( • • • continued)
in Phinney v. Pasadena Police Dep't,
( S . D . Tex . ) .

Civil Action No.

2

Notice, Docket Entry No. 6, p. 1.

3

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

4

Id. at 4.

5

Id.

6

Id.

7

H-16-3105

Id.

8

Prisoner' s Civil Rights Complaint, Docket Entry No. 1 in
Phinney v. Pasadena Police Dep't, Civil Action No. H-16-3105 (S.D.
Tex.).
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the district court determined that Phinney failed to articulate a
viable claim for relief. 9
To the extent that Phinney now faults Espinoza for failing to
initiate

criminal

charges

against

those

officers,

there

is no

constitutional right to have someone criminally prosecuted.

See

Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).

Nor is there

a constitutional right to have someone investigated.

Moreover, the

decision to charge an individual with criminal violations is not
vested within the courts, but is solely within the discretion of
the district attorney.
1146,

1149

cognizable

See Linda R.S. v. Richard D.,

(1973)

("[A]

interest

in

private
the

citizen

prosecution

lacks

or

a

93 S. Ct.
judicially

nonprosecution

of

another."); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988)
(observing that there is "no such constitutional right"

to have

another criminally prosecuted) .

Private citizens are thus not

entitled

the

to

wrongdoers.

an

order

requiring

Del Marcelle v.

901-02 (7th Cir. 2012)

arrest

or

Brown County Corp.,

prosecution

of

680 F.3d 887,

(Easterbrook, C.J., concurring)

(citations

omitted) .
Because the Complaint lacks an arguable basis in law,
case will be dismissed pursuant to 28 U.S.C.

§

this

1915A(b) as legally

frivolous.

9

0rder of Dismissal, Docket Entry No. 4 in Phinney v. Pasadena
Police Dep't, Civil Action No. H-16-3105 (S.D. Tex.).
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III.

Conclusion and Order

Based on the foregoing,

the court ORDERS that the Complaint

filed by William E. Phinney (Docket Entry No. 1) is DISMISSED with
prejudice as frivolous.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
copy by regular mail,
Texas

Department

of

The Clerk will also provide a

facsimile transmission,
Criminal

Justice

or e-mail to the

Office

of

the

General

Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 9362159.

SIGNED at Houston, Texas, on this 9th day of January, 2017.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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