Moore v. Hamilton et al

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Anthony Eugene Moore. (It is therefore recommended that Plaintiff's complaint be dismissed with prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e).). Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTHONY EUGENE MOORE #1310318

§
§
V.
§
§
GREG HAMILTON, AUSTIN POLICE
§
DEPARTMENT, TRAVIS COUNTY JAIL, §
and TRAVIS COUNTY
§

A-13-CA-353-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
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 is Plaintiff’s complaint. 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
Travis County Jail. Plaintiff alleges he was arrested on October 21, 2012, for family violence.
According to Plaintiff, he was acting in self defense against his uncle and the police asked Plaintiff
if we would like to file charges. After the police discovered Plaintiff was on parole and had
previously been convicted for family violence, he was arrested. Plaintiff asserts the “Grand Jury no
billed” his case, and Plaintiff was released from jail on January 19, 2013. Plaintiff contends he was
held illegally in the Travis County Jail for approximately 90 days. Plaintiff seeks payment for each

day he was confined. Plaintiff sues Sheriff Greg Hamilton, the Austin Police Department, the Travis
County Jail, and Travis County.
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
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.

Entities Not Capable of Being Sued

The Austin Police Department and the Travis County Jail are not legal entities capable of
being sued, as they are simply subdivisions of the City of Austin and Travis County. 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
these defendants should be dismissed.
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C.

Supervisory Liability

Plaintiff appears to attempt to hold Sheriff Hamilton liable as a supervisor, as he does not
allege Sheriff Hamilton was personally involved in his alleged constitutional violations. 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 (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 Hamilton liable in this case.
D.

Municipal Liability

Similarly, a political subdivision 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 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 (1992). Thus, the City of Austin or 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
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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 (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 failed
to identify a policy, practice or custom of either Travis County or the City that caused a deprivation
of his constitutional rights.
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice for failure
to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e).
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 Pro
Se Clerk for the United States District Court for the Eastern District of Texas.
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
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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 5th day of June, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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