Nyabwa v. Corrections Corporation of America (CCA)

Filing 6

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

ENTERED

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

COLLINS 0. NYABWA,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA,
Defendant.

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
("Complaint")

(Docket Entry No. 1), alleging that he was wrongly

imprisoned by

the

Corrections

Corporation of

America

( "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
relief."

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.
I.

Nyabwa

was

charged

in

Background

state

court

with

three

counts

of

"improper photography" in violation of§ 21.15(b) (1) of the Texas

Penal Code . 1

At the time of those charges,

photography statute made
record,

criminal

offense

to photograph,

or broadcast by video "a visual image of another at a

location
(A)

it a

the Texas improper

that

is

not

a

bathroom

or

without the other person's consent;

private
and

(B)

dressing

with intent to

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

§

21 . 15 (b) ( 1 )

room:

Tex. Penal

(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
unconstitutional.

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

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

Nyabwa' s

decision.

petition

The Texas Court of Criminal Appeals

for

discretionary

See Ex parte Nyabwa,

366 S.W.3d 710

review

from

that

(Tex. Crim. App.

2012).
On July 29, 2011, Nyabwa entered a guilty plea to the improper
photography charges against him and received a one-year prison
sentence. 2

He did not pursue an appeal from the conviction. 3

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.).
2

Id. at 2-3.

3

Id.
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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
the

custody

of

immigration

proceedings against him. 5

officials,

who

instituted

removal

Nyabwa was confined by the CCA at the

Houston Processing Center in Houston,

Texas,

from July of 2012

through November of 2013, when an immigration judge terminated the
proceedings against him. 6
On September 17,

2014,

the Texas Court of Criminal Appeals

found the Texas improper photography statute unconstitutional.
Ex parte Thompson,
August

23,

2016,

442 S.W.3d 325
Nyabwa' s

(Tex.

improper photography

vacated on federal habeas corpus review.
Civil No. H-12-1152 (S.D. Tex.)
Noting

that

the

Crim.

Texas

App.

2014).

See
On

conviction was

See Nyabwa v.

Davis,

(Docket Entry Nos. 95, 96).
improper

photography

statute

was

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.

5

Id.

6

Id.

7

Id.

8

Id. at 3.
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1983,

declaration that CCA

wrongfully imprisoned "an 'actually innocent' man." 8

4

§

II.

Discussion

To state a claim under 42 U.S.C.
demonstrate first,

§ 1983,

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)

(rejecting

a§ 1983 claim against CCA); Sarro v. Cornell Corrections,
248 F.

Supp.

2d 52,

64

(D.R.I.

2003)

Inc.,

(rejecting § 1983 claims

against a privately operated prison under contract to house federal
pretrial detainees).

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.

Nyabwa has

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,
91 S.

Ct.

court

held

1999
that

(1971).
Nyabwa

In dismissing these cases,
could

not

establish

a

the district

claim

of

false

imprisonment because the conviction which formed the basis for his
detention by CCA was not invalidated until 2016, years after his
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release from custody in 2013.
1644

(S.D.

Tex.

Feb.

1,

See Nyabwa v. CCA, Civil No. H-16-

2017)

(Docket Entry No.

Nyabwa v. Unknown Jailers at CCA,
Jan. 24, 2017)
Warden,

Civil No. H-16-782

pp.

6-9);

(S.D. Tex.

(Docket Entry No. 31, pp. 5-7); see also Nyabwa v.

Pam Lychner State Jail,

June 30,

23,

2016)

Civil No.

(Docket Entry No.

5,

pp.

H-16-1643
3-4)

(S.D.

Tex.

(concluding that

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.

6,

2017)

(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:
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. 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,

918

accord

Metcalfe,

(5th

Pete

(rejecting a

v.

false

8

F.3d

214,

218-19

(Tex. 1982);
Cir.

1993)

imprisonment claim against prison officials

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

court

with

Because

jurisdiction over him") .

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
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, 4 8 6 F. 2d 134, 13 5
curiam)

(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")
For all
dismissed

as

of

the

legally

foregoing

reasons,

frivolous

because

(citation omitted).

the
the

Complaint must
allegations

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

(5th Cir. 1992)

be
are

See Henthorn v.

(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 case that he filed against CCA,
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the

Complaint is also malicious.
994 (5th Cir. 1993)
Court records

See Pittman v. Moore, 980 F.2d 994,

(per curiam) .
reflect

that Nyabwa has

filed at

least

six

unsuccessful civil actions in the federal courts stemming from his
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);

Feb. 1, 2017).

Nyabwa v.

CCA,

Civil No.

H-16-1644

Several similar actions remain pending:

(S.D.

Tex.

Nyabwa v.

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.).

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 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.
-7-

2.

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.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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