Gomez v. Sage et al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Israel Gomez. RECOMMENDS that Plaintiffs claims for monetary relief be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). FURTHER RECOMMENDS that Plaintiff's claims s eeking habeas corpus relief be dismissed without prejudice to refiling a habeas corpus petition after he has exhausted his state court remedies. FURTHER RECOMMENDS 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 sanctions. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ISRAEL GOMEZ #1547241
KAREN SAGE and
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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 Magistrate Judges.
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. He sues Karen Sage, the judge presiding over his criminal
case or cases pending in Travis County, Texas. He accuses the judge of setting an excessive bail,
cruel punishment, and bias. He claims “judgment violated right to due process of law and innocent
until proven guilty.” Plaintiff also sues Angela Chambers, the court coordinator for Judge Sage. He
claims she did not update court information which has caused him to be held against his liberty and
in jail without bail. He requests that his criminal case be dismissed or “move courtrooms.” He also
seeks an unspecified amount of monetary damages.
DISCUSSION AND ANALYSIS
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).
It is well established that judges enjoy absolute judicial immunity from lawsuits that cannot
be overcome by allegations of bad faith or malice. Stump v. Sparkman, 435 U.S. 349, 355-56
(1978). Judicial immunity is clearly applicable in cases, such as the instant one, brought pursuant
to 42 U.S.C. § 1983. Sparkman, 435 U.S. at 356; Pierson v. Ray, 386 U.S. 547, 554-55 (1967). The
Supreme Court has recognized only two instances in which judicial immunity is inapplicable. “First
a judge is not immune from liability for non-judicial actions, i.e. actions not taken in the judge’s
judicial capacity. Second, a judge is not immune for actions though judicial in nature, taken in the
complete absence of all jurisdictions.” Mireles v. Waco, 502 U.S. 9, 11 (1991).
In the case at bar, Plaintiff does not complain of any actions taken by Judge Sage that were
nonjudicial in nature nor does he show that she was acting in the clear absence of all jurisdiction.
Accordingly, Judge Sage is protected by judicial immunity.
Relatedly, Plaintiff alleges Judge Sage instructed court clerk, Angela Chambers, to not update
court information so that Plaintiff could not make bail. Because Plaintiff alleges Chambers was
only acting at the express direction of the judge, to assist her in carrying out her judicial functions,
Defendant Chambers is likewise entitled to absolute judicial immunity with respect to Plaintiff’s
claim for monetary damages. See Mitchell v. McBryde, 944 F.2d 229, 230-31 (5th Cir. 1991). A
court employee who acts under the explicit instructions of a judge “acts as the arm of the judge and
comes within his absolute immunity,” even if the employee acts “in bad faith or with malice.” See
Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980); see also Clay v. Allen, 242 F.3d 679, 682 (5th
In addition to seeking monetary relief, Plaintiff requests that his case be dismissed or “move
While judicial immunity does not bar injunctive relief, Plaintiff’s request is
nevertheless still barred because a careful review reveals that it is simply an attempt to challenge the
validity of his current confinement, and as a result should be brought in a habeas corpus proceeding.
Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.1985); Preiser v. Rodriguez, 411 U.S. 475, 500
(1973) (“[W]hen a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or
a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”).
Because Plaintiff does not allege he has exhausted his state court remedies with respect to his claims
for habeas corpus relief, the Court should not construe his complaint in part as a petition for habeas
corpus. Rather, Plaintiff’s claims seeking habeas corpus relief should be dismissed without prejudice
to allow Plaintiff to file a habeas corpus petition after he has exhausted his state court remedies.
It is therefore recommended that Plaintiff’s claims for monetary relief be dismissed with
prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). It is further recommended that Plaintiff’s
claims seeking habeas corpus relief be dismissed without prejudice to refiling a habeas corpus
petition after he has exhausted his state court remedies.
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.
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.
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
SIGNED this 14th day of October, 2016.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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