Barnes v. Dowling et al

Filing 9

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by George Bay Barnes. Signed by Judge Mark Lane. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GEORGE BAY BARNES #1689778,
PLAINTIFF,

V.

DIRECTOR TIFFANY DOWLING and
TEXAS INDIGENT DEFENSE
COMMISSION,
DEFENDANTS.

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1:17-CV-549-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.
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
Coffield Unit of the Texas Department of Criminal Justice - Correctional Institutions Division
(TDCJ). Plaintiff complains his application for legal assistance submitted to the Thurgood Marshall

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School of Law and the Texas Center for Actual Innocence (“TCFAI”) at the University of Texas
School of Law were rejected due to his race and the staff’s incompetence. Plaintiff maintains his
actual innocence and requests legal assistance for post-conviction relief. He sues Anthony Hawton,
the director for the Thurgood Marshall School of Law, Tiffany Dowling, the director of the TCFAI,1
and the Texas Indigent Defense Commission (“TIDC”)2.
Plaintiff originally filed his complaint in the United States District Court for the Eastern
District of Texas. The magistrate judge assigned to the case severed Plaintiff’s claims against
Anthony Hawton and transferred those claims to the Southern District of Texas, Houston Division.
The magistrate judge transferred to this Court Plaintiff’s remaining claims against the TIDC and
Tiffany Dowling.
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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The TCFAI is comprised of law students at the University of Texas who screen and
investigate claims of actual innocence made by prisoners.
2

The TIDC provides financial and technical support to counties to develop and maintain
indigent defense systems that meet the needs of local communities and the requirements of the
Constitution and state law. The TIDC does not provide legal advice or represent inmates, nor do they
adjudicate claims of innocence.
2

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.

TIDC

The TIDC is protected by Eleventh Amendment Immunity. Pursuant to the Eleventh
Amendment, federal courts are without jurisdiction over suits against a state agency unless that state
has waived its sovereign immunity or Congress has clearly abrogated it.

Moore v. La. Bd. of

Elementary and Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). The Eleventh Amendment
may not be evaded by suing state agencies or state employees in their official capacity because such
an indirect pleading remains in essence a claim upon the state treasury. Green v. State Bar of Texas,
27 F.3d 1088, 1087 (5th Cir. 1994).
C.

Tiffany Dowling

Plaintiff also has not stated a valid claim against Tiffany Dowling, Director of the TCFAI.
A violation of equal protection occurs only when the governmental action in question “classif[ies]
or distinguish[es] between two or more relevant persons or groups[,]” Brennan v. Stewart, 834 F.2d
1248, 1257 (5th Cir.1988), or when a classification impermissibly interferes with a fundamental
right. Hatten v. Rains, 854 F.2d 687, 690 (5th Cir.1988). A “fundamental right,” for purposes of
equal protection analysis, is one that is “among the rights and liberties protected by the
Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973).

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Plaintiff does not identify any similarly situated prisoners, nor does his allegations show he
was intentionally treated differently from other prisoners absent a rational basis. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Vague and conclusional allegations that a
prisoner’s equal protection rights have been violated are insufficient to raise an equal protection
claim. Pedraza v. Meyer, 919 F.2d 317, 318 n.1 (5th Cir. 1990).
Moreover, prisoners do not have a constitutional right to counsel when mounting collateral
attacks upon their convictions. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) see also Murray
v. Giarratano, 492 U.S. 1 (1989) (indigent death row inmates suing under § 1983 did not have their
constitutional rights violated when state denied appointed counsel for post-conviction relief). The
Fifth Circuit has reiterated this holding in subsequent cases. See In re Sepulvado, 707 F.3d 550, 554
(5th Cir. 2013); United States v. Vasquez, 7 F.3d 81, 83 (5th Cir. 1993). Here, Plaintiff is not
entitled to appointed counsel to collaterally challenge his conviction. Plaintiff’s right to appointed
counsel extended to the first appeal of right, no further. Finley, 581 U.S. at 555.
RECOMMENDATION
It is therefore recommended that Plaintiff’s claims against the Texas Indigent Defense
Commission be dismissed without prejudice for want of jurisdiction and Plaintiff’s claims against
Defendant Dowling 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
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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
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 keeper of the three-strikes list.

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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 on July 12, 2017.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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