IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION DAVID G. SCOTT (Travis Co. #1919310) § § V. § A-20-CV-508-LY § TRAVIS COUNTY DISTRICT § ATTORNEY MARGARET MOORE § 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. 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

, Plaintiff was confined in the the Travis County Correctional Complex in Del Valle, Texas. State court records reflect Plaintiff was indicted on August 8, 2019, for Burglary of a Habitation, Enhanced in cause number D-1-DC- 19-301238. On January 16, 2020, Plaintiff was reindicted in cause number D-1-DC-20-904003. In his civil-rights complaint Plaintiff sues Travis County District Attorney Margaret Moore. He alleges: [D]uring the months of January and March[, Moore] aired campaign commercials with percentages on Judicial proceedings. Margaret Moore used Judicial proceedings to aid in her politics. She is quite simply ‘to convict to make herself look better to voters with egregious investigation and administration.’ Under her administration, Justice would be replaced by stage show with Margaret Moore as the lead actor. Using prosecution as a substitute for Justice and Political manuvering [sic] and everybody that has been in front of a grand jury has been met with this manuvering [sic]. Plaintiff seeks “$7,500 in punitive and monetary damages, relief in a public announcement of her wrongdoings.” Plaintiff previously challenged his pretrial detention in a civil-rights suit in Cause No. A-20- CV-103-LY. The Court dismissed his complaint on April 13, 2020. Plaintiff has also challenged his pretrial detention in a petition for writ of habeas corpus filed pursuant to

in Cause No. A-20-CV-287-LY. His petition for writ of habeas corpus is currently pending. DISCUSSION AND ANALYSIS A. Standard Under

(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

(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,

(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 2 which clearly does not exist.” Harper v. Showers,

(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,

(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,

(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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

, 555–56, 570 (2007)); see FED. R. CIV. P. 12(b)(6). These factual allegations

need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly,

. 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

at 555–56. B. Eleventh Amendment Immunity Plaintiff’s claims seeking monetary relief against District Attorney Margaret Moore, in her official capacity 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,

, 280 (5th Cir. 2000); Esteves v. Brock,

(5th Cir. 1997); Quinn v. Roach,

, 292–293

3 (5th Cir. May 4, 2009). Therefore, Plaintiff’s claims against the Travis County District Attorney, in her official capacity for monetary damages, are barred. C. Prosecutorial Immunity Plaintiff’s claims against District Attorney Margaret Moore in her individual capacity 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,

(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, 31 F.3d at 285 (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, 31 F.3d at 285; 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 4 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,

.

To the extent Plaintiff challenges actions or inactions taken by the prosecuting attorney during Plaintiff’s criminal proceedings Defendant Moore is protected by prosecutorial immunity. Moreover, Plaintiff has not alleged a valid violation of his constitutional rights. RECOMMENDATION It is therefore recommended that Plaintiff’s claims seeking monetary relief against Defendant Moore in her official capacity be dismissed without prejudice for want of jurisdiction and Plaintiff’s remaining claims be dismissed with prejudice for failure to state a claim upon which relief can be

granted pursuant to

(e). 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.

5 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.,

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

(1985); Rodriguez v. Bowen,

(Sth Cir. 1988). SIGNED on May 28, 2020.

MARK LANE : UNITED STATES MAGISTRATE JUDGE