Nicholas v. Thompson et al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Melvin Nicholas. Signed by Judge Mark Lane. (dm)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
(Hays County #870555)
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE ROBERT PITMAN
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
the Hays County Jail. Plaintiff is charged with murder and unlawful possession of a firearm by a
felon. He accuses Trey Thompson and John Doe prosecutors in Hays County of the use of fraudulent
indictments, vindictive prosecution, prosecutorial misconduct, and misuse of the legislative
objection. He seeks his immediate release and $5 million in damages.
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DISCUSSION AND ANALYSIS
Standard Under 28 U.S.C. § 1915(e)
According to 28 U.S.C. § 1915A(b)(1), this Court is required to screen any civil complaint
in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the
complaint if the court determines it is frivolous, malicious, or fails to state a claim on which relief
may be granted. See also 28 U.S.C. § 1915(e)(2)(B) (directing court to dismiss case filed in forma
pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state
claim on which relief may be granted).
An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke
v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it is based on
an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest
which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (internal
quotation and citation omitted).
A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional
scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v.
Thaler, 14 F.3d 8, n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether
a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same
standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152
(5th Cir. 2011); see also FED . R. CIV . P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56, 570 (2007)); see FED . R. CIV . P. 12(b)(6). These factual allegations
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need not be detailed but “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. A conclusory complaint—one that fails to state material facts or merely
recites the elements of a cause of action—may be dismissed for failure to state a claim. See id. at
Eleventh Amendment Immunity
Plaintiff’s claims seeking monetary relief against the prosecutors in Hays County in their
official capacities are barred by Eleventh Amendment Immunity. When acting in their official
capacities, Texas district attorneys are considered agents of the state, which are immune from claims
for damages under the Eleventh Amendment. Neinast v. Texas, 217 F.3d 275, 280 (5th Cir. 2000);
Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997); Quinn v. Roach, 326 Fed. Appx. 280, 292–293
(5th Cir. May 4, 2009). Therefore, Plaintiff’s claims against the defendants in their official
capacities for monetary damages are barred.
Plaintiff’s claims against the prosecutors in their individual capacities for monetary damages
are barred by prosecutorial immunity. Prosecutors are absolutely immune from liability under the
federal civil rights statutes with regard to actions taken by them within the course and scope of
representing the governmental agencies and subdivisions in judicial proceedings. Under the doctrine
of prosecutorial immunity, a prosecutor is absolutely immune in a civil rights lawsuit for any action
taken in connection with a judicial proceeding. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993);
Burns v. Reed, 500 U.S. 478, 487-92 (1991); Imbler v. Pachtman, 424 U.S. 409, 427-31 (1976).
“[A]cts undertaken by the prosecutor in preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of his role as an advocate for the State, are entitled to the
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protection of absolute immunity.” Boyd, 31 F.3d at 285 (quoting Buckley v. Fitzsimmons, 509 U.S.
at 273). Prosecutorial immunity applies to the prosecutor’s actions in initiating the prosecution and
in carrying the case through the judicial process. Boyd, 31 F.3d at 285; Graves v. Hampton, 1 F.3d
315, 318 (5th Cir. 1993). Thus, a prosecutor is immune from civil rights liability for actions taken
in connection with a judicial proceeding, even if taken maliciously. Brummett v. Camble, 946 F.2d
1178, 1181 (5th Cir. 1991); Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987).
The Court recognizes that not all prosecutorial functions are protected. In Imbler, the Court
declared that absolute immunity applied to a prosecutor’s actions in “initiating a prosecution and in
presenting the State’s case.” Imbler, 424 U.S. at 431. This immunity protected the alleged knowing
use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. In
Imbler, the Court left open the issue of whether absolute immunity applied to administrative or
investigative acts. However, in Burns, the Court answered that question, stating that absolute
immunity does not apply to investigative or administrative acts performed by prosecutors. Burns,
500 U.S. at 493.
In the case at hand, Plaintiff challenges actions or inactions taken by the prosecutors in Hays
County during Plaintiff’s criminal proceedings which are protected by prosecutorial immunity. In
this action Plaintiff does not allege any actions taken by any of the defendants that were outside the
course and scope of representing the Hays County District Attorney’s Office in Plaintiff’s criminal
proceedings. Therefore, Plaintiff’s claims against the defendants in their individual capacities for
monetary damages are barred.
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To the extent Plaintiff seeks his immediate release, he must seek such relief in a petition for
writ of habeas corpus after he exhausts his state court remedies. The exclusive remedy for a prisoner
who challenges the fact or duration of his confinement and seeks immediate or speedier release is
habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475, 488-490 (1973).
The Court should not sever Plaintiff’s claims seeking habeas corpus relief from this action.
Plaintiff already filed a petition for writ of habeas corpus in Cause No. A-21-CV-607-RP in which
he challenged his criminal proceedings in Hays County. While his habeas corpus petition was
pending, Plaintiff filed the instant civil rights complaint. Subsequently, the Court dismissed
Plaintiff’s petition for writ of habeas corpus without prejudice for failure to exhaust his state court
It is therefore recommended that Plaintiff’s claims seeking monetary relief against
Defendants in their official capacities be DISMISSED WITHOUT PREJUDICE for want of
jurisdiction, Plaintiff’s claims seeking monetary relief against Defendants in their individual
capacities be DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C. § 1915(e), and
Plaintiff’s claims seeking an immediate release be DISMISSED WITHOUT PREJUDICE to filing
a petition for writ of habeas corpus after he exhausts 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
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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 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
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v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
SIGNED on September 6, 2021.
UNITED STATES MAGISTRATE JUDGE
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