Leeper v. Travis County Sheriff's Office et al

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Rocky Leeper, 3 Motion to Appoint Counsel filed by Rocky Leeper, 2 Motion to Proceed in forma pauperis filed by Rocky Leeper. Signed by Judge Andrew W. Austin. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROCKY LEEPER

§
§
V.
§
§
TRAVIS COUNTY SHERIFF’S OFFICE, §
SHERIFF GREG HAMILTON, OFFICER §
B. PAYNE, OFFICER JOSHUA J.
§
JOHNSON, OFFICER BRADLEY ELLIS, §
NURSE AMY SMITH, CLAUDIA
§
GARCIA, NURSE PRINCE, AND TRAVIS §
COUNTY SHERIFF DEPUTIES “JANE
§
DOE” AND “JOHN DOE” 1-10
§

A-16-CV-819-RP

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff’s Complaint (Dkt. No. 1), Plaintiff’s More Definite Statement

(Dkt. No. 5) and Plaintiff’s Motion for Appointment of Counsel (Dkt. No. 3). The District Court
referred Plaintiff’s Motion to Proceed In Forma Pauperis to the undersigned Magistrate Judge for
a determination on the merits pursuant to a standing order of the Court and 28 U.S.C. § 636(b)(1)(A),
Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C to the Local Rules of the United
States District Court for the Western District of Texas.
I. ANALYSIS
A.

Frivolous Review
On August 10, 2016, this Court granted Plaintiff Rocky Leeper’s Application to Proceed In

Forma Pauperis (Dkt. No. 4), but ordered him to file a More Definite Statement in order for the
Court to complete its frivolous review under 28 U.S.C. § 1915(e). On August 22, 2016, Plainitff

filed his More Definite Statement. The relevant statute provides that “the court shall dismiss [an IFP
case] at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). “A complaint filed IFP may
be dismissed as frivolous if it lacks an arguable basis in law or fact,” Allison v. Kyle, 66 F.3d 71,
73 (5th Cir. 1995), and the claims “are of little or no weight, value, or importance, not worthy of
serious consideration or trivial.” Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520–21 (1972). The court must “accept as true factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996);
see also Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). In deciding whether a complaint
states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally cognizable
claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when
the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that
the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. 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).

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In this civil rights action, Plaintiff, who is disabled and uses a wheelchair, claims that jail
personnel at the Travis County Correctional Center were deliberately indifferent to his medical needs
and failed to provide him access to a wheelchair-accessible jail cell or bathroom in violation of the
Eighth Amendment and the Americans with Disabilities Act (“ADA”). Because Plaintiff has alleged
sufficient facts to state a claim under the ADA and the Eighth Amendment at this early stage in the
case, his lawsuit should not be dismissed at this time. Accordingly, the Court ORDERS the Clerk
to issue summons in this case and ORDERS the United States Marshal’s Service to attempt service
in this case without pre-payment of a service fee on the following parties, all of whom it appears are
employees of the Travis County Sheriff:
Sheriff Greg Hamilton
Officer B. Payne
Officer Joshua J. Johnson
Officer Bradley Ellis
Nurse Amy Smith
Claudia Garcia
Nurse Prince
Nurse Dawn Kline
Nurse Kathryn Smith
However, some of the defendants Leeper has named are improper parties. First, Plaintiff has
named the Travis County Sheriff’s Office as a defendant in this case. However, the Travis County
Sheriff’s Office is not a legal entity separate from Travis County, and it is not capable of being sued.
See Guild v. Securus Techs., Inc., 2015 WL 10818584, at *8 (W.D. Tex. Feb. 4, 2015) (finding that
the Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County
Attorney's Office are not legal entities capable of being sued). See also, Darby v. Pasadena Police
Dep’t, 939 F.2d 311, 313-14 (5th Cir. 1991) (holding that police and sheriff’s departments are
governmental subdivisions without capacity for independent legal action). The proper defendant for
this purpose would be simply Travis County.
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Plaintiff also names as a defendant Austin Municipal Court Judge Kenneth Jon Vitucci.
Judges have absolute immunity for acts done within the scope of their jurisdiction. Stump v.
Sparkman, 435 U.S. 349, 356 (1978). Judicial immunity extends to municipal judges. See Pierson
v. Ray, 386 U.S. 547, 549, 552 (1967); DeLeon v. City of Haltom City, 106 F. App’x 909, 912 (5th
Cir. 2004); and Thomas v. Sams, 734 F.2d 185, 189 (5th Cir. 1984). Because the acts on which
Leeper bases his claims against Judge Vitucci were plainly performed in the scope of his judicial
duties, Judge Vitucci must be dismissed from this lawsuit.
Leeper has also named “Travis County Sheriff’s Deputies Jane Doe and John Doe 1-10” as
defendants in this case. The Federal Rules of Civil Procedure “do not provide any authority for the
joining of fictitious defendants.” Taylor v. Federal Home Loan Bank Bd., 661 F. Supp. 1341, 1350
(N.D.Tex.1986). Federal Rule of Civil Procedure 10(a) provides in relevant part: “Caption; Names
of Parties. Every pleading must have a caption. . . . The title of the complaint must name all of the
parties.” FED. R. CIV. P. 10(a). “Plaintiffs, even those proceeding in forma pauperis, have a duty to
provide information sufficient to identify the defendants.” King v. Forest, 2008 WL 4951049
(N.D.Tex. Nov.14, 2008). Leeper provides no information to identify who these officers might be.
Thus, “Travis County Sheriff Deputies Jane Doe and John Doe 1-10”should be dismissed from this
lawsuit.
B.

Motion for Appointment of Counsel
Plaintiff has also filed a Motion for Appointment of Counsel asking the Court to appoint him

counsel to represent him in this case. “A civil rights complainant has no right to the automatic
appointment of counsel.” Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). The district court
is not required to appoint counsel for an indigent plaintiff asserting a civil rights claim unless the

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case presents “exceptional circumstances.” Id. Because Plaintiff has failed to present exceptional
circumstances in this case, his Motion for Appointment of Counsel (Dkt. No. 3) is DENIED.
II. ORDER AND RECOMMENDATION
Based upon the foregoing, the undersigned RECOMMENDS that the District Court
DISMISS Defendants Travis County Sheriff’s Office, Austin Municipal Court Judge Kenneth Jon
Vitucci and Judge Travis County Sheriff Deputies Jane Doe and John Doe 1-10 from this lawsuit.
IT IS FURTHER ORDERED that the Clerk issue summons in this case and ORDERS the United
States Marshal’s Service to attempt service in this case without pre-payment of a service fee on
Defendants Sheriff Greg Hamilton, Officer B. Payne, Officer Joshua J. Johnson, Officer Bradley
Ellis, Nurse Amy Smith, Claudia Garcia, Nurse Prince, Nurse Dawn Kline and Nurse Kathryn Smith.
IT IS LASTLY ORDERED that this cause of action is REMOVED from the undersigned
magistrate’s docket and RETURNED to the docket of the Honorable Robert Pitman.
III. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the

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District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
SIGNED this 27th day of September, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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