Nyabwa v. Corrections Corporation of America (CCA)
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. Plaintiff 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. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
COLLINS 0. NYABWA,
CORRECTIONS CORPORATION OF
February 22, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3792
MEMORANDUM OPINION AND ORDER
Former state inmate and immigration detainee Collins 0. Nyabwa
has filed a 42 U.S.C. § 1983 Complaint and Brief in Support Thereof
(Docket Entry No. 1), alleging that he was wrongly
( "CCA") .
Because Nyabwa proceeds in forma pauperis, 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
28 U.S.C. § 1915(e) (2) (B).
After considering all of the
pleadings, the court concludes that this action should be dismissed
for the reasons explained below.
"improper photography" in violation of§ 21.15(b) (1) of the Texas
Penal Code . 1
At the time of those charges,
photography statute made
or broadcast by video "a visual image of another at a
the Texas improper
without the other person's consent;
with intent to
arouse or gratify the sexual desire of any person."
21 . 15 (b) ( 1 )
(west 2 0 11 ) .
Nyabwa challenged the constitutionality of the Texas improper
photography statute by filing a pretrial writ of habeas corpus,
which the trial court denied.
That decision was affirmed by the
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
(Tex. Crim. App.
On July 29, 2011, Nyabwa entered a guilty plea to the improper
photography charges against him and received a one-year prison
He did not pursue an appeal from the conviction. 3
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.).
Id. at 2-3.
In July of 2012 Nyabwa discharged the one-year sentence that
he received as the result of his improper photography conviction. 4
A Kenyan national, Nyabwa was transferred from state prison into
proceedings against him. 5
Nyabwa was confined by the CCA at the
Houston Processing Center in Houston,
from July of 2012
through November of 2013, when an immigration judge terminated the
proceedings against him. 6
On September 17,
the Texas Court of Criminal Appeals
found the Texas improper photography statute unconstitutional.
Ex parte Thompson,
442 S.W.3d 325
vacated on federal habeas corpus review.
Civil No. H-12-1152 (S.D. Tex.)
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 CCA from
July of 2012 to November of 2013. 7
Invoking 42 U.S.C.
Nyabwa seeks $5 million in damages and a
Complaint, Docket Entry No. 1, p. 2.
Id. at 3.
declaration that CCA
wrongfully imprisoned "an 'actually innocent' man." 8
To state a claim under 42 U.S.C.
a plaintiff must
a violation of the Constitution or of federal
law; and second, that the violation was committed by someone acting
under color of state law.
See Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 252-53 (5th Cir. 2005).
Nyabwa cannot make this showing.
As a private corporation operating a prison under contract with the
federal government, CCA was not acting under color of state law for
purposes of liability under§ 1983.
See Bishawi v. Northeast Ohio
Correctional Ctr., 628 F. App'x 339, 342 (6th Cir. 2014)
a§ 1983 claim against CCA); Sarro v. Cornell Corrections,
(rejecting § 1983 claims
against a privately operated prison under contract to house federal
Accordingly, Nyabwa cannot state a claim for
relief against CCA under § 1983.
More importantly, Nyabwa's underlying claim has no merit for
reasons articulated previously by other courts in this district,
which have rejected his claims of false imprisonment.
already attempted unsuccessfully in two separate cases to raise
claims of false imprisonment against CCA and its personnel under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
In dismissing these cases,
imprisonment because the conviction which formed the basis for his
detention by CCA was not invalidated until 2016, years after his
release from custody in 2013.
See Nyabwa v. CCA, Civil No. H-16-
(Docket Entry No.
Nyabwa v. Unknown Jailers at CCA,
Jan. 24, 2017)
Civil No. H-16-782
(Docket Entry No. 31, pp. 5-7); see also Nyabwa v.
Pam Lychner State Jail,
(Docket Entry No.
Nyabwa failed to articulate a claim of false imprisonment under
state law or the Fourteenth Amendment); Nyabwa v. United States,
No. 1:16-1056, 2017 WL 80076, at *7
(Ct. Fed. Cl. Jan.
(noting that Nyabwa's detention 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:
(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
(Tex. 1985)) .
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
jurisdiction over him") .
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, 4 8 6 F. 2d 134, 13 5
(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")
meritless and have no arguable basis in law.
Swinson, 955 F.2d 351, 352
(5th Cir. 1992)
See Henthorn v.
(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.")
To the extent
that Nyabwa repeats allegations in this case that were raised by
him previously in another case that he filed against CCA,
Complaint is also malicious.
994 (5th Cir. 1993)
See Pittman v. Moore, 980 F.2d 994,
(per curiam) .
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.
Feb. 1, 2017).
Several similar actions remain pending:
United States, Civil No. H-16-0783 (S.D. Tex.); Nyabwa v. Warden,
Pam Lychner State Jail, Civil No. H-16-2638 (S.D. Tex.); Nyabwa v.
Harris County Sheriff, Civil No. H-17-0028 (S.D. Tex.).
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 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.
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 21st day of February, 2017.
UNITED STATES DISTRICT JUDGE
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