Guerrero v. Travis County, Texas et al

Filing 7

REPORT AND RECOMMENDATIONS re 6 Complaint filed by Ruben Guerrero; recommending dismissal with prejudice as frivolous and warning plaintiff of filing further frivolous suits. Signed by Judge Andrew W. Austin. (mc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RUBEN GUERRERO #1635715

§
§
V.
§
§
TRAVIS COUNTY, TEXAS;
§
SELENA M. ALVARELIGA; WILFORD §
FLOWERS; PATRICIA AGUILAR;
§
DAVID ESCAMILLA; UNKNOWN
§
EMPLOYEE OF COUNTY ATTORNEY’S §
OFFICE; ART ACEVEDO; and
§
AUSTIN POLICE DEPARTMENT
§

A-11-CA-452-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint and declaration. Plaintiff, proceeding pro se, has
been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Eastham Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Although Plaintiff’s complaint is not clear, it appears he was arrested on April 15, 2009, for an
assault that occurred on March 27, 2009, in Austin, Texas. According to Plaintiff, Selena Alvareliga

was appointed to represent him in his criminal case in the 147th Judicial District Court of Travis
County, Texas, over which Judge Flowers presided.
Plaintiff asserts he notified his attorney of a series of phone calls made between October 31,
2009, and November 9, 2009, from the Travis County Jail. The conversations were between Plaintiff
and his wife, the alleged victim of his crime. Plaintiff contends the conversations were exculpatory.
Alvareliga allegedly obtained a copy of the recordings on a CD, which she gave to a Patricia Aguilar
to interpret. According to Plaintiff, the interpreter placed the CD in her purse, which was stolen.
Plaintiff claims he urged his attorney to obtain another copy, but she failed to do so. Plaintiff alleges
he went to trial on March 24, 2010, without the exculpatory evidence. According to Plaintiff, Judge
Flowers “ruled against the evidence,” and the jury was denied the opportunity to consider the
exculpatory evidence. Plaintiff further complains his attorney introduced at trial documents
regarding the “Violence Against Women’s Act of 1994.” According to Plaintiff, Judge Flowers did
not admit the evidence, which Plaintiff claims was self-authenticated. Plaintiff indicates he was
compelled to testify at trial, because counsel failed to obtain another copy of the CD and Judge
Flowers did not admit the evidence at trial.
According to Plaintiff, on March 29, 2010, he contacted Judge Flowers and the prosecutor
and notified them of a witness’s perjured testimony, presumably his wife’s, and informed them of
existing charges against the witness where the prosecutor refused to prosecute because the witness
is female. Plaintiff additionally believes his wife was threatened by the prosecutors to testify against
him.
Prior to trial in December 2009, Plaintiff asserts he filed charges with the Travis County
Attorney’s Office. Plaintiff appears to be alleging he tried to file criminal charges against someone
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for credit card fraud and assault. According to Plaintiff, he submitted copies of his credit card
statements and a picture of his injury. Plaintiff complains the photo he submitted to the Travis
County Attorney’s Office was lost but the statements were returned. Plaintiff asserts he had another
photo, although the photo was not as clear, so he contacted Chief of Police Art Acevedo. Plaintiff
indicates he was directed to the Financial Crimes Department at the Austin Police Department, and
an investigation was started in February 2010. Plaintiff complains the investigation is still ongoing.
Plaintiff further complains Acevedo failed to pursue the “assault charge and others that were filed.”
Plaintiff sues Travis County, Selena M. Alvareliga, Wilford Flowers, Patricia Aguilar, David
Escamilla, an unknown employee of the County Attorney’s Office, Art Acevedo, and the Austin
Police Department. He requests $3.5 million in lost wages, property, and child support, $20 million
for pain and suffering, and $20 million in punitive damages.
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972). However, the
petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no

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license to harass others, clog the judicial machinery with meritless litigation and abuse already
overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
B.

State Actor

With respect to Plaintiff’s claims brought against Defendant Alvareliga, court-appointed
counsel, the provisions of 42 U.S.C. § 1983 state that every person who acts under color of state law
to deprive another of constitutional rights shall be liable to the injured party. A civil rights plaintiff
must show an abuse of government power that rises to a constitutional level in order to state a
cognizable claim. Love v. King, 784 F.2d 708, 712 (5th Cir. 1986); Williams v. Kelley, 624 F.2d
695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3009 (1981). Section 1983 suits
may be instituted to sue a state employee, or state entity, using or abusing power that is possessed
by virtue of state law to violate a person’s constitutional rights. Monroe v. Pape, 365 U.S. 167, 184,
81 S. Ct. 473 (1961); accord, Brown v. Miller, 631 F.2d 408, 410-11 (5th Cir. 1980). A private
person may be amenable to suit only when the person is a willful participant in joint action with the
State or its agents. Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct 183, 186 (1980).
An action which is essentially a tort claim for malpractice against appointed counsel cannot
be brought under §1983. See O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972); Shapley v.
Green, 465 F.2d 874 (5th Cir. 1972). Likewise, no claim under § 1983 can be brought against
retained counsel because retained counsel does not act under color of state law. Pete v. Metcalfe,
8 F.3d 214, 217 (5th Cir. 1993); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985), cert. denied,
479 U.S. 826, 107 S. Ct. 103 (1986). Because Defendant Alvareliga is not a state actor, Plaintiff’s
claims against her are frivolous.

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C.

Judicial Immunity

Judge Flowers is entitled to absolute immunity for any acts performed as a judge. It is well
settled law that a judge enjoys absolute immunity from liability for damages for judicial acts
performed within his jurisdiction. Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986). The doctrine
of absolute judicial immunity protects judges not only from liability, but also from suit. Mireless
v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288 (1991). Motive of the judicial officer is irrelevant when
considering absolute immunity. See Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991) (“The
judge is absolutely immune for all judicial acts not performed in clear absence of all jurisdiction,
however erroneous the act and however evil the motive.”).
Absolute judicial immunity is overcome in only two rather narrow sets of circumstances:
first, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the
judge’s judicial capacity, and second, a judge is not immune for actions, though judicial in nature,
taken in complete absence of all jurisdiction. Mireless, 502 U.S. at 11-12, 112 S. Ct. at 288. “A
judge’s acts are judicial in nature if they are ‘normally performed by a judge’ and the parties affected
‘dealt with the judge in his judicial capacity.’” Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994)
(quoting Mireless, 502 U.S. at 12, 112 S. Ct. at 288). In the case at bar, Plaintiff does not complain
of any actions taken by Judge Flowers that were non-judicial in nature nor does he show that Judge
Flowers was acting in the clear absence of all jurisdiction. Accordingly, Judge Flowers is protected
by absolute immunity, and Plaintiff’s claims against him are frivolous.
D.

Interpreter

Assuming, without deciding, that Defendant Patricia Aguilar, the interpreter, is a state actor,
Plaintiff has failed to allege a valid constitutional violation. Having her purse stolen with a CD
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recording of Plaintiff’s jailhouse phone conversations contained within it can hardly be considered
a constitutional violation.
E.

Travis County and the County Attorney’s Office

Plaintiff complains an unidentified employee of the Travis County Attorney’s Office lost a
photo he submitted to show his injury from an alleged assault. Plaintiff believes County Attorney
David Escamilla is responsible for his employee’s actions.
First, losing a photo does not amount to a constitutional violation. Second, supervisory
officials cannot be held vicariously liable in § 1983 cases solely on the basis of their employeremployee relationship. Monell v. Department of Social Services, 436 U.S. 658, 693, 98 S. Ct. 2018,
2037 (1978); Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). If a supervisor is not personally
involved in the alleged constitutional deprivation, he may be held liable only if there is a sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional violations.
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). In order to demonstrate a causal
connection, the supervisor would have to “implement a policy so deficient that the policy itself is
a repudiation of constitutional rights and is the moving force of the constitutional violation.” Id. at
304. Plaintiff has failed to provide a basis for holding Defendant Escamilla or the unknown county
employee liable in this case.
Similarly, a political subdivision, such as Travis County, cannot be held responsible for a
deprivation of a constitutional right merely because it employs a tortfeasor; in other words a local
government unit cannot be held responsible for civil rights violations under the theory of respondeat
superior. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). The standard for holding a local
government unit responsible under § 1983 requires that there be a custom or policy that caused the
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plaintiff to be subjected to the deprivation of a constitutional right. Id; Collins v. City of Harker
Heights, Tex., 916 F.2d 284, 286 (5th Cir. 1990), aff’d, 503 U.S. 115, 112 S. Ct. 1061 (1992). Thus,
Travis County would violate an individual’s rights only through implementation of a formally
declared policy, such as direct orders or promulgations or through informal acceptance of a course
of action by its employees based upon custom or usage. Bennett v. City of Slidell, 728 F.2d 762, 768
(5th Cir. 1984), cert. denied, 472 U.S. 1016, 105 S. Ct. 3476 (1985). A single decision made by an
authorized governmental decisionmaker to implement a particular course of action represents an act
of official government policy. Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299
(1986). Plaintiff not only fails to allege a valid constitutional violation, he fails to identify a policy,
practice or custom of Travis County that caused a deprivation of his constitutional rights.
F.

Chief of Police and the Austin Police Department

Plaintiff complains Chief of Police Art Acevedo failed to pursue assault charges against an
unidentified person and has not completed the investigation into Plaintiff’s complaint of credit card
fraud. However, Plaintiff does not have a right to have an individual criminal prosecuted. Oliver
v. Collins, 914 F.2d 56 (5th Cir. 1990).
In addition, the Austin Police Department is not a legal entity capable of being sued. See
Guidry v. Jefferson County Detention Center, 868 F. Supp. 189, 191 (E.D. Tex. 1994) (holding that
the Jefferson County Detention Center is not a legal entity subject to suit); Darby v. Pasadena Police
Dep’t, 939 F.2d 311 (5th Cir. 1991) (holding that police and sheriff’s departments are governmental
subdivisions without capacity for independent legal action). Therefore, Plaintiff’s claims against
Chief Acevedo and the Austin Police Department are frivolous.

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G.

Heck v. Humphrey

Finally, insofar as Plaintiff is challenging his state criminal conviction, Plaintiff’s claims are
also barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372 (1994) and the Fifth
Circuit’s application of Heck to state prisoner § 1983 lawsuits in Boyd v. Biggers, 31 F.3d 279 (5th
Cir. 1994). In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.
In this case Plaintiff does not allege that his conviction has been reversed, expunged, invalidated,
or called into question by a federal court’s issuance of writ of habeas corpus. In fact, Plaintiff’s
conviction was recently affirmed. Guerrero v. State, No. 03-10-00218-CR, 2011 WL 2176825 (Tex.
App. – Austin June 3, 2011).
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge

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of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
It is further recommended that Plaintiff should be warned that for causes of action which
accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order
of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate
while the inmate was in the custody of the Department or confined in county jail awaiting transfer
to the Department following conviction of a felony or revocation of community supervision, parole,
or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct
time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued
good conduct time, if the Department has previously received two final orders; or (3) 180 days of
an inmate’s accrued good conduct time, if the Department has previously received three or more
final orders. See, TEX . GOV ’T CODE ANN . § 498.0045 (Vernon 1998).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three
actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then he will be prohibited from bringing any other
actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ
- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the
Eastern District of Texas.

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OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 14th day of June, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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