Malone v. Dutton et al

Filing 91

ORDER GRANTING 69 Motion to Dismiss ; DENYING 82 Motion for Leave to File a Surrebuttal. Signed by Judge Sam Sparks. (td)

FL:)
IN THE UNITED STATES DISTRICT COURT21117
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

-

2. f

EDWARD A. MALONE,
Plaintiff,
CAUSE NO.:
A-16-CA-1183-SS

-vs-

JAMES KEVIN DUTTON,
Defendant.

ORDER
BE IT REMEMBERED on the 11th day of August 2017, the Court held a hearing in the

above-styled cause, and the parties appeared in person or through counsel. Before the Court are
Defendant James Kevin Dutton's Motion to Dismiss [#69], Plaintiff Edward Malone's Response
[#77] in opposition, and Dutton's Reply [#78] in support, as well as Malone's Motion for Leave
to File a Surrebuttal [#82]. Having reviewed the documents, the arguments of counsel, the

relevant law, and the file as a whole, the Court now enters the following opinion and orders.

Background
This action emerges from the prosecution of Malone by Dutton in his capacity as District

Attorney for Judicial District

1

of Texas. On April 29, 2015, the Texas Supreme Court issued

Malone a law license. Fourth Am. Compl. [#65] at 3. Shortly thereafter, in February 2016, the

Texas Board of Law Examiners launched an investigation to determine whether Malone's law
license should be suspended, and on June 7, 2016, the Texas Supreme Court cancelled Malone's
license. Id.

1

J

Subsequently, in August 2016, Dutton charged Malone with falsely holding himself out
as a lawyer under Texas Penal Code

§

38.122, after Malone asserted he was an attorney in

correspondence with a local news publication, the San Augustine Tribune. Id. at 6-8. Malone
was indicted by a Grand Jury on August 8, 2016, but the State District Court of San Augustine
County, Texas quashed the indictment on February 22, 2017. Id. The State District Court's

decision to quash the indictment is currently pending on appeal. Id. at 9-10.

Notwithstanding the pending state court proceedings, Malone filed suit pro se in this
Court on November 11, 2016. See Compl. [#1]. Malone seeks damages, declaratory relief, and

injunctive relief under 42 U.S.C.

§

1983, alleging violations of the First and Fourth

Amendments. Fourth Am. Compl. [#65] at 10-23. In addition, Malone seeks damages for
malicious prosecution under Texas common law. Id. at 23-25. Malone has sued Dutton in both
his individual and official capacities. Id. at

1.

Dutton now moves to dismiss, arguing Malone's claims are barred by official and
prosecutorial immunity. Mot. Dismiss [#69]. Alternatively, Dutton has requested this Court
dismiss Malone's equitable claims and stay Malone's damages claims under the doctrine of

equitable restraint set forth in Younger v. Harris, 401 U.S. 37 (1971). Mot. Dismiss [#69].

Analysis
I.

Legal Standard
The Federal Rules of Civil Procedure require each claim in a complaint include "a short

and plain statement.

. .

showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The

claims must include sufficient factual allegations, accepted as true, to state a claim for relief that
is facially plausible. Ashcrofi v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads sufficient

2

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 566 U.S. at 678. Although a plaintiffs factual allegations
need not establish the defendant is probably liable, they must establish more than a "sheer

possibility" a defendant has acted unlawfully. Id. Determining plausibility is a "context-specific
task," and must be performed in light of a court's "judicial experience and common sense." Id. at

Motions to dismiss for failure to state a claim are appropriate when a defendant attacks
the complaint because it fails to state a legally cognizable claim.' Fed. R. Civ. P. 12(b)(6). When
a district court reviews a motion to dismiss pursuant to Rule

1

2(b)(6), it must construe the

complaint in favor of the plaintiff and take all well-pleaded facts as true. Gonzalez

v.

Kay, 577

F.3d 600, 603 (5th Cir. 2009). However, a court is not bound to accept legal conclusions couched
as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable

inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not
mere conclusory allegations." Tuchman

v.

DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir.

1994). In deciding a motion to dismiss, courts may consider the complaint, as well as other

sources such as documents incorporated into the complaint by reference and matters of which a
court may take judicial notice. Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007).

There is some confusion regarding whether dismissals under Younger should be evaluated under the
rubric of Rule 12(b)(1) or 12(b)(6). See Verbal v. Krueger, No. l:09CV990, 2010 WL 276644 at *6 (M.D.N.C. Jan
15, 2010) (listing circuits which have concluded dismissals under Younger should be evaluated under Fed. R. Civ. P.
12(b)(6)); see also Carlsbad Tech. v. HIFBIO, Inc., 556 U.S. 635, 639 (2009) ("This Court's precedent makes clear
that whether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercise
that jurisdiction."). Because Malone's claims fail under either standard, the Court's Younger analysis proceeds under
Rule 12(b)(6).
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II.

Application
A. Claims Against Dutton in His Individual Capacity

Prosecutors are absolutely immune from liability under

within the scope of their prosecutorial duties. See Kalina

v.

§

1983 in suits based on actions

Fletcher, 522 U.S. 118, 123-29

(1997); Imbler v. Pachtman, 424 U.S. 409, 427-28, 430-31 (1976). In Texas, prosecutors also

possess absolute immunity from liability for state law claims based upon actions within the scope

of their prosecutorial duties. See, e.g., Miller

v.

Curry, 625 S.W.2d 84, 86 (Tex.

App.Fort

Worth 1981, writ ref'd n.r.e.) ("There has long been a common law immunity for prosecutors
from civil actions for malicious prosecution based on an indictment and prosecution which

results in an acquittal of the accused."); Harris
175588 at *4 (Tex.

App.Dallas Feb.

v.

Francis, No. 05-99-00866-CV, 2000 WL

16, 2000, no pet.) ("In construing the doctrine

of absolute

prosecutorial immunity, Texas courts follow federal jurisprudence and apply the functional
approach set out in Imbler v. Pachtman.").

With respect to both state and federal claims, absolute prosecutorial immunity applies so
long as the prosecutor's activities are "intimately associated with the judicial phase of the
criminal process." Imbler, 424 U.S. at 430; see also Font

App.Houston [1st Dist.]

v.

Carr, 867 S.W.2d 873, 878 (Tex.

1993, writ dism'd w.o.j.) (using functional analysis to conclude

prosecutorial immunity is appropriate where the official's conduct is "intimately associated"
with the judicial phase of litigation). Thus, prosecutors cannot be held liable if the conduct

complained of consists of initiating, investigating, or pursuing a criminal prosecution. See Cook
v.

Houston Post, 616 F.2d 791, 793 (5th Cir. 1980) (noting extension of prosecutorial immunity

to a prosecutor's actions in initiating, investigating, and pursuing a criminal prosecution); see

also Quinn

v.

Roach, 326 F. App'x 280, 292 (5th Cir. 2009); Cousin

v.

Small, 325 F.3d 627, 635

(5th Cir. 2003) ("Willful or malicious prosecutorial misconduct is egregious by definition, yet
prosecutors are absolutely immune from liability for such conduct if it occurs in the exercise of

their advocatory function.")

Malone's claims against Dutton in his individual capacity allege Dutton (1) unlawfully
seized Malone by "procur[ingj an indictment;" (2) unlawfully abridged Malone's freedom of
speech and freedom of association by "initiat{ing] a proceeding" against Malone; and (3)

unlawfully and maliciously prosecuted Malone. See Fourth Am. Compl. at 1 8_24.2 The acts of
procuring an indictment and initiating a proceeding are "intimately associated with the judicial
phase of the criminal process." See 1mb/er, 424 U.S. at 430; Cousin, 325 F.2d at 635; Cook, 616
F.2d at 793; Font, 867 S.W.2d at 878. Accordingly, the Court dismisses Malone's claims against
Dutton in his individual capacity as barred by the doctrine of absolute prosecutorial immunity.
B. Claims Against Dutton in His Official Capacity

The Younger abstention doctrine bars federal courts from enjoining ongoing state judicial

proceedings. Younger

v.

Harris, 401 U.S. 37, 40-41 (1971). "When a federal court is asked to

interfere with a pending state prosecution, established doctrines of equity and comity are

reinforced by the demands of federalism, which require that federal rights be protected in a
maimer that does not unduly interfere with the legitimate functioning of the judicial systems of
the States." Kug/er

v.

He/fant, 421 U.S. 117, 123 (1975). Abstention under Younger is proper

when three criteria are met: "(1) the dispute should involve an 'ongoing state judicial

proceeding;' (2) the state must have an important interest in regulating the subject matter of the
claim; and (3) there should be an 'adequate opportunity in the state proceedings to raise
2

For purposes of this Rule 1 2(b)(6) motion, the Court is limited to considering factual allegations made
within Malone's complaint, as well as any documents attached or incorporated by reference. See, e.g., Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Powell v. Dallas Morning News LP, 610 F. Supp.
2d 569, 577 (N.D. Tex. 2009) (declining to consider factual allegations made within response).
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constitutional challenges." Wightman

v. Tex.

Supreme Court, 84 F.3d 188, 189 (5th Cir. 1996)

(quoting Middlesex Cty., 457 U.S. at 435-37); see also Bishop v. State Bar of Tex., 736 F.2d 292,
294 (5th Cir. 1984)). If all three Younger factors are met, a federal court must not issue equitable

relief unless the plaintiff can show exceptional circumstances create a threat of immediate
irreparable harm. Kugler, 421 U.S. at 123.
1.

The Prerequisites of Younger Abstention are Met.

Under the facts of this case, the requirements of Younger abstention are met. First, the
pending appeal of the state district court's order quashing the indictment against Malone

qualifies as an "ongoing state judicial proceeding." See, e.g., DeSpain

v.

Johnston, 731 F.2d

1171, 1177-78 (5th Cir. 1984) ("[T]he Younger doctrine requires that federal courts abstain

when a state proceeding is pending and the state appellate procedure has not been exhausted.").
Second, the criminal proceeding implicates important state interests. When a court
enquires into the substantiality of the State's interest in its proceedings, it does not look narrowly
to its interest in the outcome of the particular case. New Orleans Pub. Serv., Inc. v. Council of
City ofNew Orleans, 491 U.S. 350, 365 (1989). Rather, it looks to the importance of the generic

proceedings to the State. Id. It is clear Texas has an important interest in "carrying out the

important and necessary task of enforcing its criminal laws." Id. (quoting Younger, 401 U.S. at

51-52).
Third, the state criminal proceeding offers Malone an adequate opportunity to raise his

constitutional challenges. "Federal intervention is not necessitated whenever an appellant
contends that he will lose in state court. Instead, intervention is appropriate only if a party has no
opportunity to present his federal claim in a state proceeding." Ballard v. Wilson, 856 F.2d 1568,
1571 (5th Cir. 1988) (internal citations omitted). Malone argues he lacks an adequate opportunity

to raise his constitutional claims in the state criminal proceeding because Texas does not allow

criminal defendants to raise as-applied challenges through pretrial applications for a writ of
habeas corpus. Resp. [#77] at 48-50 However, Malone's inability to raise his as-applied

challenges at the pretrial stage does not preclude Malone from raising his as-applied challenges
at a later point in the trial, should a trial eventually occur. Cf Kugler, 421 U.S. at 124 (finding

the "cost, anxiety, and inconvenience of having to defend against a single criminal prosecution"
do not constitute an irreparable injury precluding application of Younger); State ex rel. Lykos

v.

Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). Because Malone would be able to
eventually raise his as-applied claims if the state court indictment were revived, the Court finds
Malone has an adequate opportunity to raise his constitutional challenges in state court. In sum,
the prerequisites of Younger abstention are met, and accordingly, Malone's equitable claims
must be dismissed3 unless an exception to Younger applies.
2. The Exceptions to Younger Do Not Apply.

If all three Younger factors are met, a federal court must not issue equitable relief
interfering with a pending state criminal prosecution unless exceptional circumstances create "a

threat of irreparable injury both great and immediate." Kugler, 421 U.S. at 123 (internal
quotation marks omitted). A federal court may decline to engage in Younger abstention in three
circumstances: "where there is a showing of bad faith or harassment by state officials responsible
for the prosecution; where the state law to be applied in the criminal proceeding is flagrantly and

patently violative of express constitutional prohibitions; or where there exist other extraordinary
circumstances in which the necessary irreparable injury can be shown even in the absence of the
See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996) ("[W]here the relief being sought is
equitable in nature or otherwise discretionary, federal courts not only have the power to stay the action based on
abstention principles, but can also, in otherwise appropriate circumstances, decline to exercise jurisdiction altogether
by either dismissing the suit or remanding it to state court.").

7

usual prerequisites of bad faith and harassment." See id. at 124 (internal citations and quotation

marks omitted); see also Perez

v.

Ledesma, 401 U.S. 82, 117-2 1 (1971). A plaintiff arguing

against the application of Younger bears the burden of establishing one of the exceptions applies.
See Kirschner v. Kiemons, 225 F.3d 227, 235-36 (2d Cir. 2000) (citing Middlesex Cty., 457 U.s.
at 435); see also Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979) (holding plaintiff bears

burden of proving exception to Younger based on prosecution motivated by impermissible
purpose).
a. Malone Has Not Requested Equitable Relief Warranting Application of the
Bad Faith Exception.
"The bad faith exception is narrow and to be granted parsimoniously." Wightman, 84
F.3d at 190. The Younger exception for bad faith prosecutions is primarily applied in two
circumstances: when a state commences a prosecution or proceeding to retaliate for or to deter

constitutionally protected conduct; or when the prosecution or proceeding is taken in bad faith or
for the purpose to harass. Bishop, 736 F.2d at 294. "To invoke this exception, the federal plaintiff

must show the state proceeding was initiated with and is animated by a retaliatory, harassing, or
other illegitimate motive." Diamond "D" Constr. Corp.

v.

McGowan, 282 F.3d 191, 198 (2d Cir.

2002). "Mere conclusory allegations of bias are insufficient to overcome

Youngera plaintiff

seeking to avoid Younger must affirmatively demonstrate the justification for application of an

exception." Kirschner, 225 F.3d at 236.
In his response to Dutton's motion to dismiss, Malone asserts for the first time that

Younger's bad faith exception applies in this case because Dutton "exploited a poorly written
statute to settle a score with one of his political enemies." Resp. [#77] at 46. Elsewhere in his

complaint, Malone also asserts Dutton used

§

38.122 "as a pretext to quell Plaintiff's freedom of

association." See Fourth Am. Compi. [#65] at 22. Problematically, however, none of Malone's
[ol

[]

requests for injunctive relief bear any relation to these conclusory allegations of bad faith. For
example, Malone requests the Court declare § 38.122 unconstitutional and enjoin the State of
Texas from enforcing it. Id. at 10-13. In a similar vein, he insists that if the Court does not enjoin
and invalidate

§

38.122, "the Kevin Duttons of this world will be free to maliciously indict non-

barred lawyers" under

§ 3 8.122.

Id. at 15.

Malone has not asked this Court to enjoin a particular bad faith prosecution. Rather, he
asks this Court to enjoin all enforcement of § 3 8.122. Id. at 10-15. The bad faith exception is the

improper vehicle for seeking such broad equitable relief. Instead, Malone's equitable claims are
more properly addressed under Younger's second exception, which allows courts to enjoin a
facially unconstitutional statute, despite ongoing state criminal proceedings, where the offending
statute is "flagrantly and patently violative of express constitutional prohibitions in every clause,
sentence and paragraph, and in whatever manner and against whomever an effort might be made
to apply it." Younger, 401 U.S. at 53-54. Malone has simply failed to ask for injunctive relief

related to the bad faith exception he seeks to invoke. Given the narrow ambit of the exception,
see Wightman, 84 F.3d at 190, the Court declines to apply the bad faith exception to Younger
here.

b. Malone Has Not Shown State Law Flagrantly and Patently Violates an

Express Constitutional Prohibition.
Malone also argues Texas Penal Code

§

38.122 is flagrantly and patently

unconstitutional. However, Malone's conclusory allegations regarding the unconstitutionality of
§ 3 8.122

are insufficient to meet his burden of establishing this exception to the application of

Younger. Texas Penal Code

courts. See Cells
Cells

v.

v.

§

38.122 has been found constitutional by both state and federal

Williams, No. 2:14CV-335, 2017 WL 1074917 (S.D. Tex. March 22, 2017);

State of Tex., 354 S.W.3d 7 (Tex.

App.Corpus Christi 2011),

aff'd

416 S.W.3d 419

(Tex. Crim. App. 2013). In light of these prior rulings, this Court does not find

§

38.122

"flagrantly and patently violative of express constitutional prohibitions in every clause, sentence
and paragraph, and in whatever manner and against whomever an effort might be made to apply

it."

Younger,

401 U.S. at 53-54. The Court therefore declines to apply this exception to

c. Malone Has Not Shown

Younger.

Other Extraordinary Circumstances.

Finally, Malone has failed to plead "other extraordinary circumstances" meriting federal

intervention in an ongoing state judicial proceeding. Malone argues extraordinary circumstances
exist because the State of Texas's pretrial habeas procedures provide inadequate protection of
federal rights.

See

Resp. [#77] at 48. The Court finds that Malone's inability to present his as-

applied claims through a pretrial writ of habeas corpus does not constitute an extraordinary

circumstance because the state criminal proceeding provides other opportunities to litigate asapplied constitutional claims. Cf

Fine,

330 S.W.3d at 910. Given Malone's failure to plead

specific facts showing extraordinary circumstances meriting federal intervention in an ongoing
state judicial proceeding, the Court declines to apply the extraordinary circumstances exception
here.

Conclusion
In sum, Malone's claims against Dutton in his individual capacity are barred by the

doctrine of absolute prosecutorial immunity and dismissed with prejudice. Malone's claims
against Dutton in his official capacity, for which he seeks declaratory and injunctive relief, are
incapable of resolution at this time and subject to dismissal without prejudice under the doctrine

of equitable restraint set forth in

Younger.

Finally, Malone's motion for leave to file a surrebuttal

is denied because Malone received adequate opportunity to address Dutton' s arguments at the

10

August 11, 2017 hearing on the motion to dismiss. Therefore, the Court GRANTS Dutton's

Motion to Dismiss and DENIES Malone's Motion for Leave to File a Surrebuttal.
Accordingly,
IT IS ORDERED that Defendant's Motion to Dismiss [#69] is GRANTED;
IT IS FURTHER ORDERED that Plaintiff's claims against Defendant in his

individual capacity are DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that Plaintiff's claims against Defendant in his

official capacity are DISMISSED WITHOUT PREJUDICE; and
IT IS FINALLY ORDERED that Plaintiff's Motion for Leave to File a
Surrebuttal [#82] is DENIED.

SIGNED this the

3day of October 2017.

UNITED STATES DISTRICT JUDGE

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