Eddleman v. Carter et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Murry Christopher Eddleman. It is therefore recommended that Plaintiffs habeas corpus claims be dismissed without prejudice to filing an application for habeas corpus relief. It is further recommended that Plaintiffs civil-rights claims be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e).. Signed by Judge Mark Lane. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MURRY C. EDDLEMAN
(Travis Co. #1503851)
V.
JOHN CARTER, UNITED STATES,
KEN ANDERSON, TOM WEBBER,
MIKE KINCAID, and RAY BASS

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A-15-CA-441-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 Correctional Complex. Plaintiff sues United States House of Representative John
Carter (former Williamson County Judge), Ken Anderson (former Williamson County District

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Attorney), Tom Webber (criminal defense attorney), Mike Kincaid (Round Rock Police Officer), and
Ray Bass (criminal defense attorney).
Plaintiff seeks to overturn two felony convictions out of Williamson County and requests
compensation for mental, emotional and physical duress. Plaintiff explains in 1988 he was staying
at the Radisson Hotel where Officer Mike Kincaid was doing extra duty as hotel security. According
to Plaintiff, Kincaid came to his hotel room after Plaintiff had checked in, covered the peep hole, and
misidentified himself. Plaintiff asserts Kincaid entered his room and illegally searched it. Plaintiff
states he went to jail for possession of a controlled substance. At the time of his arrest, Plaintiff was
on parole, after having been convicted of possession of a controlled substance in 1983. Plaintiff was
subsequently convicted of possession of a controlled substance for his 1988 crime. He contends
Kincaid lied on the witness stand.
Plaintiff accuses John Carter of sending him to prison in 1983 and 1988 when Plaintiff was
helpless and unable to defend himself. He alleges Carter worked with Prosecutor Ken Anderson by
failing to use his position to intervene. Plaintiff contends Anderson used unlimited resources to
prosecute him.
According to Plaintiff, he was represented by Tom Webber in one of his criminal cases.
Plaintiff contends Webber was inadequate and did not represent him to the best of his attorney’s
ability. Plaintiff was apparently represented by Ray Bass in another one of his criminal cases.
Plaintiff admits Bass used his knowledge and expertise to help his case by going above and beyond
what the law allowed. Plaintiff claims his defense was appreciated and he thanks Bass.
Nevertheless, Plaintiff named Bass as a defendant but later stated “this man is omitted.”

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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 (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.

Habeas Claims

To the extent Plaintiff seeks to overturn his 1983 and 1988 convictions, he must seek such
relief in an application for habeas corpus relief after he has exhausted his state court remedies. The
exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks
immediate or speedier release is habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475, 488-490
(1973). The Court should decline to construe this action as a request for habeas corpus relief. If
Plaintiff did not intend for this action to be an application for habeas corpus relief pursuant to 28
U.S.C. § 2254, any subsequently filed applications could be subject to the restrictions on “second
or successive” motions. See e.g. Castro v. United States, 540 U.S. 375 (2003). Additionally,
Plaintiff makes no allegations suggesting he has exhausted his state court remedies.
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C.

Defendant Carter

Defendant Carter 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 (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 nonjudicial 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. “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). In the case at bar, Plaintiff does not complain of any actions taken by Defendant Carter
that were nonjudicial in nature nor does he show that he was acting in the clear absence of all
jurisdiction. Accordingly, Defendant Carter is protected by absolute immunity.
D.

Defendant Anderson

Defendant Anderson is also protected by absolute immunity. Prosecutors are absolutely
immune from liability under the federal civil rights statutes with regard to actions taken by them
within the course and scope of representing the governmental agencies and subdivisions in judicial
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proceedings. Under the doctrine of prosecutorial immunity, a prosecutor is absolutely immune in
a civil rights lawsuit for any action taken in connection with a judicial proceeding. Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993); Burns v. Reed, 500 U.S. 478, 487-92 (1991); Imbler v.
Pachtman, 424 U.S. 409, 427-31 (1976). “[A]cts undertaken by the prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate
for the State, are entitled to the protection of absolute immunity.” Boyd v. Biggers, 31 F.3d 279, 285
(5th Cir. 1994) (quoting Buckley v. Fitzsimmons 113 S. Ct. at 2615). Prosecutorial immunity
applies to the prosecutor’s actions in initiating the prosecution and in carrying the case through the
judicial process. Boyd, 31 F.3d at 285; Graves v. Hampton, 1 F.3d 315, 318 (5th Cir. 1993). Thus,
a prosecutor is immune from civil rights liability for actions taken in connection with a judicial
proceeding, even if taken maliciously. Brummett v. Camble, 946 F.2d 1178, 1181 (5th Cir. 1991),
cert. denied, 504 U.S. 965 (1992); Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987).
The Court recognizes that not all prosecutorial functions are protected. In Imbler, the Court
declared that absolute immunity applied to a prosecutor’s actions in “initiating a prosecution and in
presenting the State’s case.” Imbler, 424 U.S. at 431. This immunity protected the alleged knowing
use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. In
Imbler, the Court left open the issue of whether absolute immunity applied to administrative or
investigative acts. However, in Burns, the Court answered that question, stating that absolute
immunity does not apply to investigative or administrative acts performed by prosecutors. Burns,
500 U.S. at 493.
In the case at hand, Plaintiff challenges actions taken by Defendant Anderson which are
protected by prosecutorial immunity. In this action Plaintiff does not allege any actions taken by
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Defendant Anderson that were outside the course and scope of representing the District Attorney’s
Office in Plaintiff’s criminal proceedings. Therefore, Defendant Anderson is protected by absolute
immunity.
E.

Defendants Webber and Bass

With respect to Plaintiff’s claims brought against Defendants Webber and Bass, Plaintiff has
not sued state actors. 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 (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
(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 (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 (1986). Accordingly, Plaintiff’s claims brought against Defendants Webber and Bass
are frivolous.
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F.

United States

Plaintiff’s complaint is not clear as to whether he has also named the United States as a
defendant. In the event Plaintiff has named the United States as a party, his claims are barred by
sovereign immunity. The law is clear claims for alleged constitutional violations against the United
States are barred by the doctrine of sovereign immunity. Correctional Servs. Corp. v. Malesko, 534
U.S. 61, 71-72 (2001); FDIC v. Meyer, 510 U.S. 471, 486 (1994) (finding there is no direct cause
of action for damages against a federal agency because of sovereign immunity).
G.

Defendant Kincaid

Insofar as Plaintiff is seeking monetary damages against Defendant Kincaid for his alleged
illegal conviction, Plaintiff’s claims must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (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. Plaintiff’s recitation
of the procedural history in this case indicates just the opposite. Accordingly, Plaintiff’s claims for
monetary damages regarding his alleged illegal arrest and conviction are barred by Heck.
Alternatively, Plaintiff’s claims are time-barred. There is no federal statute of limitations for
§ 1983 actions. Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995); Henson-El v.

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Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235 (1991). Therefore, the Supreme
Court has directed federal courts to borrow the forum state’s general personal injury limitations
period. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Texas, the applicable limitations period
is two years. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (citing TEX . CIV . PRAC. & REM .
CODE ANN . § 16.003(a) (Vernon 1986)). Nevertheless, federal law determines when a § 1983 cause
of action accrues. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir . 1993). A cause of action under
§ 1983 accrues when the aggrieved party knows, or has reason to know of, the injury or damages
which form the basis of the action. Piotrowski, 51 F.3d at 516. Plaintiff complains of actions that
occurred in 1988, twenty-seven years ago.
RECOMMENDATION
It is therefore recommended that Plaintiff’s habeas corpus claims be dismissed without
prejudice to filing an application for habeas corpus relief. It is further recommended that Plaintiff’s
civil-rights claims 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
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
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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.
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 on June 22, 2015.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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