Barefield v. Reed

• Decision Date: 19 November 2012
• Docket Number: Civil Action No. SA-12-CA-965-XR
• Parties: JEREMIAH BAREFIELD, # 697760, Plaintiff v. DISTRICT ATTORNEY SUSAN REED, SHERIFF AMADEO ORTIZ, Defendants
• Court: U.S. District Court — Western District of Texas

JEREMIAH BAREFIELD, # 697760, Plaintiff

v. DISTRICT ATTORNEY SUSAN REED,SHERIFF AMADEO ORTIZ, Defendants

Civil Action No. SA-12-CA-965-XR

UNITED STATES DISTRICT COURT WESTERN DISTRICT of TEXAS SAN ANTONIO DIVISION

SIGNED: November 19, 2012

DISMISSAL ORDER

Plaintiff Jeremiah Barefield filed a 42 U.S.C. § 1983 civil rights complaint. This Court ordered Plaintiff to pay the filing fee or submit a complete application to proceed in forma pauperis, including an institutional trust fund account statement, and to show cause why his civil rights complaint should not be dismissed. Plaintiff was informed that if he failed to respond to the order, his complaint would be dismissed for failure to prosecute and failure to comply with an order of this Court, pursuant to Fed. R. Civ. P. 41(b).

The time for compliance with this Court's order has expired. Plaintiff has not paid the filing fee or submitted a complete application to proceed in forma pauperis, and Plaintiff has not responded to the show cause order. Therefore, Plaintiff's complaint is dismissed pursuant to Rule 41(b) for failure to prosecute, failure to comply with this Court's orders, and for failure to pay the filing fee. See Martinez v. Johnson, 104 F. 3d 769, 772 (5th Cir. 1997). Also, Plaintiff's complaint fails to state a claim for federal civil rights relief for the following reasons.

Plaintiff is incarcerated as a pretrial detainee in the Bexar County Adult Detention Center. Plaintiff alleges Defendant Susan Reed, Bexar County District Attorney, violated his right to a fairtrial within 180 days of the start of the criminal action, in violation of his federal constitutional rights. Plaintiff claims his defense has been prejudiced and he has endured extreme hardship. He contends Defendant Reed denied his right to an examining trial and Reed has asked the grand jury to indict even though Plaintiff asked for an examining trial.

Plaintiff asserts Defendant Amadeo Ortiz, Bexar County Sheriff, violated his constitutional rights by imposing cruel and unusual punishment. Plaintiff claims Defendant Ortiz allows pretrial detainees to be deprived of adequate time in the law library, sanitary and cleaning supplies, meals served at the required temperature, and phones to make unmonitored legal calls to their attorneys.

Plaintiff seeks compensatory and punitive damages.

Title 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) states the court shall dismiss an in forma pauperis complaint if the court determines it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from an immune defendant. To state a claim pursuant to Fed. R. Civ. P. 12(b)(6), plaintiff's allegations must present "enough facts to state a claim to relief that is plausible on its face," i.e., the "[f]actual allegations must be enough to raise a right to relief above the speculative level," and "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007). For the limited purpose of making these determinations, this Court assumes the factual allegations of the complaint are true. United States v. Gaubert, 499 U.S. 315, 326 (1991).

When interpreting a prisoner's IFP complaint, the court should look at the substance of the complaint setting aside statements of "bare legal conclusions, with no suggestion of supporting facts." See Wesson v. Oglesby, 910 F. 2d 278, 281 (5th Cir. 1990). Conclusory IFP complaints may be dismissed as frivolous. See, e.g., Wilson v. Budney, 976 F. 2d 957, 958 (5th Cir. 1992); Moody v. Baker, 857 F. 2d 256, 257 (5th Cir. 1988).

In a § 1983 civil rights action, a plaintiff must allege a violation of a right secured by the Constitution and laws of the United States, and show the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). The case and controversy requirement of Article III of the Constitution requires that to proceed in federal court a complaint must allege an injury. See O'Shea v. Littleton, 414 U.S. 488, 493-95, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974).

Plaintiff's allegation that the prosecution failed to try him within 180 days as required by State law fails to state a claim. Violations of state law are not a basis for a federal civil rights claim. See Brown v. Sudduth, 675 F. 3d 472, 478 (5th Cir. 2012). Plaintiff also has no basis for a federal speedy trial claim because he does not allege he has been in custody in excess of one year. "Absent extreme prejudice or a showing of willfulness by the prosecution to delay the trial in order to hamper the defense, a delay of less than one year is not sufficient to trigger an examination . . . of the Barker [v. Wingo, 407 U.S. 514 (1972)], factors" governing a speedy trial claim. Cowart v. Hargett, 16 F. 3d 642, 647 (5th Cir. 1994).

In a § 1983 civil rights action, a plaintiff must allege and prove the defendant was personally involved in the actions he complains of, or is responsible for the policy or custom giving rise to the constitutional deprivation. See McConney v. City of Houston, 863 F. 2d 1180, 1184 (5th Cir. 1989); Reimer v. Smith, 663 F. 2d 1316, 1323 (5th Cir. 1981); Howell v. Tanner, 650 F. 2d 610, 615 (5th Cir. 1981). An employer is not liable under § 1983 on a respondeat superior theory, i.e. an employer is not liable under § 1983 solely because it employs a tortfeasor. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-91 (1978). Plaintiff does not allege Defendants Reed and Ortiz were personally involved in the actions he complains about, and he does not allege how Defendants Reed and Ortiz were responsible for a policy or custom giving rise to a constitutional deprivation.

A prosecutor as an advocate is absolutely immune from liability. See Burns v. Reed, 500 U.S. 478, 492 (1991) (prosecutor's presentation of evidence in support of search warrant was protected by absolute immunity); Graves v. Hampton, 1 F. 3d 315, 318 n.9 (5th Cir. 1993) ("A prosecutor is immune, however, even if accused of knowingly using perjured testimony"). Therefore, Defendant Reed is immune from suit.

Plaintiff's claim regarding an examining trial lacks merit. The right to an examining trial comes from state law, not federal law; therefore, denial of an examining trial is not a basis for a § 1983 civil rights claim. See Texas v. Reimer, 678 F. 2d 1232, 1233 (5th Cir. 1982). Moreover, "it is constitutionally permissible to refer a case directly to the...