Curtis v. Townslee Corbett et al

Filing 11

REPORT AND RECOMMENDATIONS re 1 Complaint. It is recommended that Plaintiffs complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). Signed by Judge Andrew W. Austin. (os)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TONEY CURTIS SR.
V.
REVA L. TOWNSLEE CORBETT,
TAMMY BRAUNER,
TRAVIS FLEETWOOD, and
PRESIDING DISTRICT ATTORNEY
OF JULY 16, 2015

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A-15-CA-661-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 are Plaintiff’s complaint and more definite statement. 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
the Washington County Jail. According to Plaintiff, he had a bond hearing in Washington County
on July 16, 2015, over which Judge Reva L. Townslee presided. Also in attendance were Plaintiff’s
attorney, Travis Fleetwood, and an unnamed prosecuting attorney. Plaintiff complains Tammy
Brauner, District Clerk of Washington County, gave his civil rights complaint, mistakenly mailed
to the Washington County District Clerk, to the prosecuting attorney instead of mailing the

complaint back to Plaintiff. Plaintiff alleges his civil complaint was discussed at his bond hearing
where no one had the right to discuss his complaint or review its contents. Plaintiff contends this
violated his constitutional rights.
After the Court reviewed Plaintiff’s complaint in this case, it ordered Plaintiff to file a more
definite statement explaining how each of the named defendants violated his constitutional rights.
With regard to Judge Corbett Plaintiff asserts she violated Plaintiff’s constitutional rights by
taking upon herself to act as if she was appointed judge while under the color of state
law to view its contents, question me about its contents and present the matter to the
court appointed attorney Travis Fleetwood as if he was appointed or hired attorney
over my civil matter.
Plaintiff alleges Judge Corbett exposed the contents of his civil complaint to the public and those
in attendance at his bond hearing. Plaintiff claims “Judge Reva Corbett did prevent the execution
of a civil process by having its contents of legal private federal documents in her possession July 16
2015 my civil process.”
With regard to District Clerk Tammy Brauner, Plaintiff alleges she violated his constitutional
rights by “passing [his] federal and legal documents to another to obtain knowledge of [his] private
civil complaint against the Washington County Sheriff’s Department.” According to Plaintiff,
Brauner should have returned Plaintiff’s mistakenly mailed civil complaint back to him through the
U.S. mail instead of giving it to a jailer to pass to him. He claims Brauner violated his rights by
“preventing the execution of a civil process” and bringing about harassment by the courthouse staff
and the Washington County Sheriff’s Department. He believes her actions may have also caused
the denial of bond in his criminal case.

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Plaintiff alleges Travis Fleetwood had no right to act as if he was representing Plaintiff in his
civil complaint and had no right to view the contents of the civil complaint. Plaintiff contends
Fleetwood participated in the “act of preventing execution in a civil process.” He appears to believe
the denial of bond was also caused by Fleetwood.
With regard to the prosecutor, Plaintiff contends his possession of the civil complaint
violated Plaintiff’s constitutional rights. Plaintiff further contends the prosecutor violated his rights
when he passed the civil complaint to the judge and when he exposed the civil matter to the public.
Plaintiff opines the prosecutor showed prejudice at the bond hearing because of the contents of the
complaint. In addition, Plaintiff alleges the prosecutor violated his rights by “preventing the
execution of a civil process.”
In his more definite statement, Plaintiff explains he mistakenly mailed his civil rights
complaint to District Clerk Brauner. In that complaint, he sued Dr. Yoffe, the Washington County
Jail doctor, and the sheriff for denial of adequate medical care. With regard to the Court’s question
of how the mentioning of the civil complaint in Plaintiff’s bond hearing was a violation of Plaintiff’s
constitutional rights, Plaintiff responded
neither of the defendants had rights to view, be in possession[,] act as counsel or
discuss its contents in the Washington County courthouse when they were not
appoint[ed] District Attorney, Appointed Judge, Appointed or hired counsel. By my
civil complaint being at my bond hearing was an act of preventing the execution in
a civil process. The Washington County District Clerk had no right to pass my
private complaint around.
Plaintiff seeks an order prohibiting the defendants from ever violating his constitutional rights again
in the Washington County Courthouse or be shown prejudice because of his civil complaint while

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he is defending his criminal case. Plaintiff also requests compensation for the violation of his
constitutional rights and exposure of his civil legal documents and its private matters.
On September 3, 2015, a month after the Court received Plaintiff’s complaint in this case,
the Court received Plaintiff’s civil rights complaint against Doctor Yoffe and the Washington County
Jail. See Curtis v. Washington Cnty. Jail, No. A-15-CV-736-LY (W.D. Tex.). The complaint is
dated June 22, 2015, and is presumably the complaint he mistakenly mailed to the Washington
County District Clerk. In that complaint, Plaintiff explains he had stitches in his stomach and they
were poking out, causing him much pain. Plaintiff alleges he asked Dr. Yoffe whether he could get
the stitches removed if he remained in jail for nine months. According to Plaintiff, Dr. Yoffe
responded “no” and Plaintiff needed to “get done here with youre [sic] case here then get them taking
[sic] out wherever you go from here.” In his complaint, Plaintiff requested medical treatment.
In the more definite statement filed in the instant case, Plaintiff admits he received medical
treatment shortly after his bond hearing. He fails to give credit to the defendants for prompting the
medical treatment.
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).

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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.

Judicial Immunity

Judge Corbett 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 Judge Corbett that
were nonjudicial in nature nor does he show that she was acting in the clear absence of all
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jurisdiction when she considered at Plaintiff’s bond hearing his mistakenly mailed civil complaint.
Accordingly, Judge Corbett is therefore protected by absolute immunity.
C.

Prosecutorial Immunity

The unnamed prosecuting attorney 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 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 509 U.S. at 273). 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
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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 the prosecuting attorney during
Plaintiff’s bond hearing which are clearly protected by prosecutorial immunity. In this action
Plaintiff does not allege any actions taken by the defendant that were outside the course and scope
of representing the District Attorney’s Office in Plaintiff’s criminal proceedings. Therefore, the
prosecuting attorney is protected by absolute immunity.
D.

State Actor

With regard to Plaintiff’s claims against Travis Fleetwood, his court appointed criminal
attorney, Plaintiff has not sued a state actor. 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. See, 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). To prevail on a Section 1983
conspiracy claim against an otherwise private party, the plaintiff must allege and prove an agreement
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between the private party and persons acting under color of state law to commit an illegal act and
an actual deprivation of the plaintiff's constitutional rights in furtherance of that agreement. See,
Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). In this case, Plaintiff does not a allege there has
been a conspiracy to violate his constitutional rights.
E.

District Clerk Brauner

Construing Plaintiff’s allegations liberally, as the Court must, Plaintiff may be alleging
District Clerk Brauner denied him access to court. However, Plaintiff has not demonstrated his
constitutional rights were violated.
Prisoners have a constitutionally protected right of access to the courts. Bounds v. Smith,
430 U.S. 817, 821 (1977); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). This right of
access for prisoners is not unlimited. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Rather, it encompasses only a reasonably adequate opportunity to file nonfrivolous legal claims
challenging their convictions or conditions of confinement. Lewis v. Casey, 518 U.S. 343, 351
(1996). Thus, to prevail on a denial of access to the courts claim under section 1983, a plaintiff must
show an actual injury in connection with an identifiable legal proceeding. Id., 518 U.S. at 349-53.
Plaintiff does not allege he has been denied access to courts. Rather, he alleges he mailed
his civil rights complaint to the wrong court and the District Clerk of Washington County informed
the prosecuting attorney regarding the substance of the complaint. Plaintiff admits the District Clerk
returned his civil rights complaint to him but complains it was delayed and not through the U.S.
mail. The complaint was returned to Plaintiff with a note informing him he needed to file the
complaint in federal court. After a brief delay, Plaintiff filed his complaint in federal court and has

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not shown an actual injury. Accordingly, Plaintiff fails to state a valid constitutional claim with
regard to the handling of his civil rights complaint.
Plaintiff also has not stated a constitutional violation against Defendant Brauner with regard
to his bond hearing. Plaintiff merely alleges the clerk provided the mistakenly filed civil rights
complaint to the prosecutor in his pending criminal case and he was denied release on bond after the
contents of the civil rights complaint were discussed. The clerk is not responsible for the judicial
determination made by the judge that Plaintiff be denied bond.
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
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 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).
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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
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 6th day of October, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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