UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

MOSES ARTHURS #2209122 § § V. § A-19-CV-825-LY § WASHINGTON COUNTY, TX; § JULIE RENKEN; LAUREN § HAVISHEIRER; AND § JUDGE CARSON CAMPBELL §

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

(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. I. STATEMENT OF THE CASE At the time he filed his complaint pursuant to

, Plaintiff was confined in the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff alleges he was arrested in Houston on a warrant out of Washington County, Texas. Plaintiff was subsequently convicted of aggravated assault with a deadly weapon and sentenced to two years in prison. Plaintiff maintains his innocence. He sues Washington County, District Attorney Julie Renken, Assistant District Attorney Lauren Havisheirer, and Judge Carson Campbell. Plaintiff requests that the Court reverse his sentence and award him an unspecified amount of monetary damages. II. DISCUSSION AND ANALYSIS A. Standard Under

(e) An in forma pauperis proceeding may be dismissed sua sponte under

(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,

(5th Cir. 1986). When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as liberally as possible. Haines v. Kerner,

(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.,

(5th Cir. 1986).

B. Judicial Immunity Plaintiff’s claims against Judge Carson Campbell are barred by judicial immunity. It is well settled law that a judge enjoys absolute immunity from liability for damages for judicial acts performed within his jurisdiction. Hale v. Harney,

(5th Cir. 1986). The doctrine of absolute judicial immunity protects judges not only from liability, but also from suit. Mireless v. Waco,

(1991). Motive of the judicial officer is irrelevant when considering absolute immunity. See Mitchell v. McBryde,

(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,

. “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,

(5th Cir. 1994) (quoting Mireless,

). In the case at bar, Plaintiff does not complain of any actions taken by Judge Campbell that were nonjudicial in nature; nor does he show that he was acting in the clear absence of all jurisdiction. Accordingly, Judge Campbell is protected by absolute immunity. C. Prosecutorial Immunity Plaintiff’s claims against District Attorney Renken and Assistant District Attorney Havisheirer 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,

(1993); Burns v. Reed,

(1991); Imbler v. Pachtman,

(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 protection of absolute immunity.” Boyd,

(quoting Buckley v. Fitzsimmons,

). Prosecutorial immunity applies to the prosecutor’s actions in initiating the prosecution and in carrying the case through the judicial process. Boyd,

; Graves v. Hampton,

(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,

(5th Cir. 1991); Rykers v. Alford,

(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,

. 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,

. In the case at hand, Plaintiff challenges actions or inactions taken by the prosecuting attorneys during Plaintiff’s criminal proceedings which are clearly protected by prosecutorial immunity. In this action Plaintiff does not allege any actions taken by the defendants that were

outside the course and scope of representing the District Attorney’s Office in Plaintiff’s criminal proceedings. Therefore, District Attorney Renken and Assistant District Attorney Havisheirer are protected by absolute immunity. D. Heck v. Humphrey Plaintiff’s claims seeking monetary damages are also barred by Heck v. Humphrey,

(1994), and the Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in Boyd,

(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 imprisonment has been reversed, expunged, invalidated, or called into question by a federal court’s issuance of writ of habeas corpus. E. Habeas Claims Finally, to the extent Plaintiff seeks the reversal of his conviction or sentence, he must seek such relief in an application for habeas corpus relief. 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,

(1973). The Court should decline to construe this action as a request for habeas corpus relief because Plaintiff has not alleged that he has exhausted his state court remedies. Public records show Plaintiff has not yet filed a state application for habeas corpus relief, and it does not appear that Plaintiff filed a direct appeal of his criminal conviction or sentence. III. RECOMMENDATION It is therefore recommended that Plaintiff’s claims seeking monetary relief be dismissed with prejudice as frivolous pursuant to

(e) and Plaintiff’s claims seeking the reversal of his conviction or sentence be dismissed without prejudice to filing an application for habeas corpus relief 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

(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 keeper of the three-strikes list. IV. 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.

(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.,

(5th Cir. 1996) (en banc); Thomas v. Arn,

(1985); Rodriguez v. Bowen,

(Sth Cir. 1988). SIGNED on October 17, 2019. Hh SUSANHIGHTOWER i (ssts—‘—Cs UNITED STATES MAGISTRATE JUDGE