Boyd v. Salacki et al
REPORT AND RECOMMENDATION to the District Court that Plaintiffs claims against Defendants Kennedy and Del Toro contained within 1 Complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e) and Plaintiffs remaining claims be dismissed without prejudice as frivolous pursuant to Heck. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
OFFICER CHRISTOPHER SALACKI,
POLICE CHIEF ART ACEVEDO,
JUDGE BRENDA KENNEDY, and
HECTOR DEL TORO
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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 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 on a bench warrant from the Texas Department of Criminal
Justice - Correctional Institutions Division. Plaintiff is serving concurrent sentences of two and ten
years’ imprisonment for aggravated assault and unlawful possession of a firearm by a felon out of
Travis County, Texas.
Plaintiff alleges Officer Salacki failed to notify him of his rights at the time of his arrest and
Police Chief Art Acevedo questioned him and lied about the law before his rights were read.
Plaintiff further alleges Judge Brenda Kennedy denied him due process, a speedy trial and assistance
of counsel. Finally, Plaintiff alleges his attorney failed to provide him with effective assistance of
counsel and due process and provided him erroneous advice.
Plaintiff previously challenged his convictions in a federal application for habeas corpus
relief in Cause No. A-16-CV-1081-SS (W.D. Tex.). The Court denied Plaintiff’s application on
August 15, 2017. Plaintiff’s appeal of the Court’s denial is currently pending. In this civil rights
complaint, Plaintiff seeks “justice in the violations of [his] rights so that [he] may receive justice in
[his] denied Habeaus [sic] Corpus relief.”
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 plaintiff’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).
Judge Kennedy 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 her 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 Kennedy
that were nonjudicial in nature nor does he show that she was acting in the clear absence of all
jurisdiction. Accordingly, Judge Kennedy is protected by absolute immunity.
Defendant Hector Del Toro is not 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. An action which is essentially a tort claim for malpractice against
appointed counsel cannot be brought under §1983. See O’Brien v. Colbath, 465 F.2d 358, 359 (5th
Cir. 1972); Shapley v. Green, 465 F.2d 874 (5th Cir. 1972). Likewise, no claim under § 1983 can
be brought against retained counsel because retained counsel does not act under color of state law.
Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir.
1985), cert. denied, 479 U.S. 826 (1986). Accordingly, Plaintiff’s claims against Defendant Del
Toro are frivolous.
Heck v. Humphrey
Plaintiff’s claims are also barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) and the
Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in Boyd v. Biggers, 31 F.3d 279
(5th Cir. 1994). In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.
In this case Plaintiff does not allege that his convictions have been reversed, expunged, invalidated,
or called into question by a federal court’s issuance of writ of habeas corpus. Plaintiff’s recitation
of the procedural history in this case indicates just the opposite. Accordingly, Plaintiff’s claims are
frivolous and should be dismissed without prejudice to refile once the conditions of Heck are met.
It is therefore recommended that Plaintiff’s claims against Defendants Kennedy and Del Toro
be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e) and Plaintiff’s remaining
claims be dismissed without prejudice as frivolous pursuant to Heck.
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 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.
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.
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).
SIGNED this 9th day of February, 2018.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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