Calderon v. Bandera Cnty., CIVIL NO. SA-14-CA-881-XR (PMA)

• Decision Date: 01 December 2014
• Docket Number: CIVIL NO. SA-14-CA-881-XR (PMA)
• Parties: ROBERT CALDERON, Plaintiff, v. BANDERA COUNTY, BANDERA COUNTY SHERIFF'S OFFICE, JAMES MCMILLAN, NOAH HERNANDEZ, Deputy, WELDON TUCKER, Deputy, DELLA BAKER, Jail Administrator, LANCE COLEMAN, Texas Ranger, Deputy Chief FNU BAKER, Deputy FNU FEY, TAMMY KNEUPER, Clerk, DANNY MASTERS, Deputy, STEVEN WADSWORTH, Assistant District Attorney, BRUCE CURRY, District Attorney, and STEPHEN B. ABLES, Judge, Defendants.
• Court: U.S. District Court — Western District of Texas

ROBERT CALDERON, Plaintiff, v. BANDERA COUNTY, BANDERA COUNTY SHERIFF'S OFFICE, JAMES MCMILLAN,NOAH HERNANDEZ, Deputy, WELDON TUCKER, Deputy, DELLA BAKER, Jail Administrator,LANCE COLEMAN, Texas Ranger, Deputy Chief FNU BAKER, Deputy FNU FEY,TAMMY KNEUPER, Clerk, DANNY MASTERS, Deputy, STEVEN WADSWORTH, Assistant

District Attorney, BRUCE CURRY, District Attorney, and STEPHEN B. ABLES, Judge, Defendants.

CIVIL NO. SA-14-CA-881-XR (PMA)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

December 1, 2014

MEMORANDUM OPINION AND ORDER

The matter before the Court is the status of this cause. Plaintiff Robert Calderon, currently an inmate at the Galveston County Jail, has filed this action pursuant to 42 U.S.C. Section 1983 seeking monetary damages for alleged police brutality and illegal detention. For the reasons set forth in detail below, all of plaintiff's claims are barred by the two-year statute of limitations applicable to Section 1983 claims, some are barred by the doctrine of absolute judicial immunity, and others are barred by the doctrine of qualified immunity and the Supreme Court's holding in Heck v.Humphrey; all are dismissed as frivolous and for failure to state a cause of action pursuant to 28 U.S.C. Sections 1915(e) and 1915A.

I. Background

Plaintiff was convicted under the name Roberto Calderon in Kerr County cause no. A05-129-1 in the 216th Judicial District Court of Texas of evading arrest and sentenced to serve a two-year term of imprisonment. Ex parte Roberto Calderon, WR-40,814-02, 2007 WL 274229 (Tex. Crim. App. Jan. 31, 2007). Plaintiff did not appeal his conviction or sentence but, in November, 2006, filed an application for state habeas corpus relief which, on June 6, 2007, the Texas Court of Criminal Appeals denied without written order based on the findings of the state trial court made without a hearing. Ex parte Roberto Calderon, WR-40,814-02 (Tex. Crim. App. June 6, 2007).

Plaintiff entered a plea of no contest on February 27, 2007 in Bandera County cause no. CR-3720-04, was convicted under the name Roberto Calderon of indecency with a child, and sentenced to serve a two-year term of imprisonment. Ex parte Robert Calderon, WR-40,814-03, 2008 WL 4532759 (Tex. Crim. App. Oct. 8, 2008). Plaintiff filed a state habeas corpus application arguing, in part, that he had not been properly credited with time served while a detainer had been lodged against him. In an unpublished Opinion issued December 17, 2008, the Texas Court of Criminal Appeals granted plaintiff relief in the form of 157 additional days of credit against his sentence and ordered plaintiff immediately discharged. Ex parte Robert Calderon, AP-76,057, 2008 WL 5245347 (Tex. Crim. App. Dec. 17, 2008). Plaintiff filed a second application for state habeas corpus relief challenging his Bandera county conviction which the Texas Court of Criminal Appeals dismissed because plaintiff's sentence was discharged. Ex parte Roberto Calderon, WR-40,814-04 (Tex. Crim.App. Sept. 14, 2011). In November, 2014, plaintiff filed two other state habeas corpus applications challenging his Bandera County conviction which have not yet been resolved by the state courts, i.e., WR-40,814-05 and WR-40,814-06.

Plaintiff Robert Calderon initially filed this civil rights action on October 6, 2014 in the United States District Court for the Southern District of Texas pursuant to 42 U.S.C. Section 1983 naming as defendants the City of Bandera, Bandera County, and the Bandera County Sheriff's Department and alleging that (1) on or about July 11, 2008 he was falsely incarcerated on unspecified charges, (2) he was detained for 157 days, during which he lost a mobile home, two cars, and various items of personal property totaling $75,000 in value, (3) plaintiff suffered mental anguish as a result of his false arrest, illegal detention, and exposure to filthy jail conditions which has caused plaintiff to suffer a poor diet, and other physical and psychological disorders, including lack of sleep, kidney and bladder failure, impaired vision, malnutrition, and chronic stomach and back pain. (ECF no. 1) Plaintiff named as defendants the City of Bandera, Bandera County, and the Bandera County Sheriff's Department and sought damages of $75.00 for property loss, $500,000 for his false imprisonment and resulting personal injuries, and two million dollars in punitive damages. Plaintiff's original complaint was not accompanied by either the filing fee of three hundred fifty dollars or by a complete In Forma Pauperis application accompanied by a certified copy of plaintiff's inmate trust account statement for the past six months, as required by 28 U.S.C. Section 1915(a)(2).

Following transfer of plaintiff's lawsuit to this Court, in a Show Cause Order issued October 14, 2013 (ECF no. 5), the Magistrate Judge directed plaintiff to file a complete In Forma Pauperis application, together with a certified copy of plaintiff's inmate trust account statement and to file an amended complaint addressing the legal deficiencies noted by the Magistrate Judge, includingplaintiff's apparent failure to bring this action within the two-year statute of limitations applicable to such claims.

On October 30, 2014, plaintiff filed a motion for leave to proceed In Forma Pauperis (ECF no. 6), a motion for discovery (ECF no. 7), and motion for declaratory judgment (ECF no. 8), and an amended complaint (ECF no. 9). In his amended complaint, plaintiff added twelve new defendants (but deleted the City of Bandera as a defendant) and several new factual allegations all relating to either (1) plaintiff's interrogation on or about March 25, 2004, (2) plaintiff's arrest (during which plaintiff alleges he was subjected to excessive force) and interrogation (during which plaintiff alleges he was tortured) on or about April 1, 2004, (3) plaintiff's subsequent criminal prosecutions in Bandera County criminal cause no. 3720-04 and Kerr County criminal cause no. A05-129, (4) plaintiff's claims he was the subject of a conspiracy to coerce plaintiff into pleading nolo contendere or guilty in both of those criminal proceedings, (5) the failure of a state district judge to properly state on a judgment that plaintiff's sentences in the two criminal cases were to run concurrently (which plaintiff alleges resulted in plaintiff serving 487 days of illegal confinement) and (6) the failure of a Texas Ranger to investigate plaintiff's claims of excessive force, torture, and illegal detention. In his amended complaint, plaintiff identifies fourteen defendants and requests ten million dollars in compensatory and punitive damages.

II. Standard of Review Under 28 U.S.C. § 1915A

Congress has directed federal courts to review, before docketing if feasible or as soon after docketing as practicable, a complaint in a civil action in which a prisoner seeks redress from a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). This requirement applies regardless of whether a prisoner has qualified to proceed In Forma Pauperis pursuant to 28 U.S.C.§ 1915(a)(1). See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 527 U.S. 1041 (1999) (holding dismissal as frivolous under Section 1915A is permissible regardless of whether the plaintiff has paid the filing fee or has qualified to proceed In Forma Pauperis under Section 1915). In the course of this review, the federal courts must dismiss any claim which is either (1) frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012), cert. denied, ___ U.S. ___, 134 S. Ct. 80, 187 L. Ed. 2d 62 (2013); Martin v. Scott, 156 F.3d at 579-80; 28 U.S.C. § 1915A(b). 28 U.S.C. § 1915A(c) defines the term "prisoner" broadly to include not only persons incarcerated for criminal offenses but also persons detained pending adjudication of a criminal charge or for violation of the terms of parole, probation, or other diversionary programs. 28 U.S.C. § 1915A(c).

In the course of conducting the review mandated by Section 1915A(b), federal courts accept the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014); Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). The dismissal of a claim pursuant to Section 1915A(b) for failure to state a claim upon which relief may be granted is appropriate when the plaintiff fails to plead facts which allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011). This is the same standard applied to dismissals under FED. R. CIV. P. 12(b)(6) for failure to state a claim for relief that is plausible on its face. Id. Likewise, when reviewing a complaint for possible dismissal as frivolous under § 1915A(b)(1), a federal court applies the same legal standard as that used to dismiss claims as frivolous under § 1915 (e)(2)(B)(i). See Morris, 702 F.3d at 189 (holding dismissal of a claim asfrivolous under § 1915A(b)(1) is appropriate if it does not have an arguable basis in law or fact). Pursuant to Section 1915A(b)(1), this Court must sua sponte review plaintiff's claims under both the frivolous standard of Section 1915(e)(2)(B)(i) and the failure to state a claim standard of Rule 12(b)(6).

III. Standard of Review Under FED.R.CIV.P. 12(b)(6)

The pleading standard set forth in FED.R.CIV.P. 8(a)(2) (which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief") does not require detailed factual allegations but it does demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint...