Diaz v. Tocci, CIVIL NO. SA-16-CA-356-DAE (PMA)
| Decision Date | 16 June 2016 |
| Docket Number | CIVIL NO. SA-16-CA-356-DAE (PMA) |
| Parties | VICTOR DIAZ, TDCJ No. 1885162, Plaintiff, v. JAMES TOCCI, MARILISA JANSSEN, SHARON MACRAE, RICHARD MOLINA, WENDI WILSON-ORTIZ, SUSAN D. REED, CORNELIUS NOEL COX, MELISSA SKINNER, SAN ANTONIO POLICE DEPARTMENT, JUANITA GONZALES, ANTHONY RAMIREZ, and CHARLES SPEARS, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Plaintiff Victor Diaz, currently an inmate at the Texas Department of Criminal Justice's Boyd Unit, filed this civil rights action pursuant to 42 U.S.C. § 1983 in the Southern District of Texas naming as defendants various state prison officials, as well as several state district judges, prosecuting attorneys, criminal defense counsel, and local law enforcement officials whom plaintiff alleges were involved in conspiracies to have plaintiff convicted in Bexar County cause nos. 2010-CR-10591 and 2013-CR-1116. The United States District Court for the Southern District of Texas transferred plaintiff's claims, which collaterally attacked his two state criminal convictions, to this Court. For the reasons set forth below, plaintiff's claims are summarily dismissed as frivolous.
Public records maintained by the Texas Department of Criminal Justice and Texas Court of Criminal Appeals reveal that (1) plaintiff was convicted in Bexar County cause no. 2010-CR-10581 on a charge of assault upon a family member and sentenced on December 10, 2010 to serve a two-year term of incarceration; (2) plaintiff was convicted in Bexar County cause no. 2013-CR-1116 of aggravated assault with a deadly weapon and sentenced on September 26, 2013 to serve a ten-year term of incarceration; (3) plaintiff filed a state habeas corpus application (WR-79,542-01) in May, 2013 attacking his conviction in cause no. 2010-CR-10581. The Texas Court of Criminal Appeals dismissed this petition on May 29, 2013, because plaintiff's sentence had already been discharged; (4) plaintiff attempted to appeal from his conviction in cause no. 2013-CR-1116 but the Texas Fourth Court of Appeals dismissed the appeal because he had entered into a plea bargain waiving his right to appeal, see Diaz v. State, 04-13-00722-CR, 2013 WL 6672809 (Tex. App. - San Antonio Dec. 18, 2013, no pet.); (5) plaintiff filed a motion for extension of time to file a petition for discretionary review (but no actual petition for discretionary review), which the Texas Court of Criminal Appeals denied on April 17, 2014 (PD-0491-14); (6) plaintiff filed an original mandamus action in the Texas Court of Criminal Appeals in November, 2014 which the Texas Court of Criminal Appeals denied without an order on January 14, 2015 (WR-79,542-02); and (7) plaintiff filed a second state habeas corpus application attacking his conviction in 2010-CR-10581 (WR-79,542-03) which the Texas Court of Criminal dismissed because plaintiff's sentence had already been discharged.
There is no evidence in the public record and no allegation currently before this Court establishing that either of plaintiff's state criminal convictions has ever been reversed, vacated, or otherwise abrogated.
In his original § 1983 complaint in this cause (ECF no. 1), plaintiff asserted claims against various state district judges, prosecuting attorneys, his former criminal defense counsel, and several San Antonio Police officers. Plaintiff alleged those defendants conspired in unspecified ways to have plaintiff convicted of criminal offenses in each of the two state criminal cases referenced above. Plaintiff alleged in conclusory fashion that various state district judges, prosecutors, and court-appointed criminal defense counsel conspired to have plaintiff convicted of both his assault charges by (1) the prosecution's withholding of unspecified evidence from the defense in violation of the rule announced in Brady v. Maryland; (2) his defense counsel turning over unidentified documents to the prosecution; (3) the prosecution engaging in vindictive and selective prosecution; (4) the state courts disregarding exculpatory affidavits signed by Rebecca DeLeon, Baldemar DeLeon, and Jose J. Aguirre; (5) the prosecution illegally indicting plaintiff in both cause no. 2010-CR-10581 and 2013-CR-1116; (6) his defense counsel (attorneys Tocci and Cox) failing to request a Gerstein hearing and coercing plaintiff to plead guilty to both the criminal charges; and (7) the defendants collectively conspired to commit the foregoing violations of plaintiff's constitutional rights.
In addition, plaintiff complained about events surrounding his arrest and prosecution. More specifically, plaintiff alleged police officers (1) employed excessive force and filed false reports in connection with plaintiff's arrest on or about August 30, 2012; (2) entrapped plaintiff in a manner resulting in plaintiff's arrest on an aggravated robbery charge; and (3) illegally seized property belonging to plaintiff during or in connection with plaintiff's arrests. Plaintiff sought monetary damages against each named defendant in the amount of one million dollars, as well as punitive and "putative" monetary damages.
In a Show Cause Order issued April 18, 2016 (ECF no. 4), the Magistrate Judge pointed out that (1) plaintiff's claims collaterally attacking plaintiff's state criminal convictions appeared to be barred by the rule announced by the Supreme Court in Heck v. Humphrey; (2) plaintiff's claims against the individual defendants appeared to be foreclosed by the doctrines of absolute judicial immunity, prosecutorial immunity, and qualified immunity; (3) plaintiff's claims against his former defense counsel failed to show those attorneys acted under color of state law; and (4) plaintiff's claims challenging his arrest and alleged property loss in 2012 appeared to be barred by the two-year statute of limitations applicable to § 1983 claims in Texas. The Magistrate Judge directed plaintiff to file an amended complaint addressing the many deficiencies and defects noted in plaintiff's original complaint.
On May 31, 2016 (ECF no. 10), after requesting and twice obtaining extensions of time, plaintiff filed his amended complaint, in which he (1) argued he did not discover the factual bases for his challenges to his aggravated assault conviction (which plaintiff misidentified as an "aggravated robbery" conviction) until he obtained his case file from his attorney on February 4, 2014; (2) argued the two trial judges named as defendants in his original complaint were divested of their absolute judicial immunity because (a) Judge MacRae wrongfully convicted plaintiff of assault in a bench trial after willfully concealing unidentified exculpatory evidence and forcing plaintiff to endure an eight-month period of pretrial detention, and (b) Judge Skinner failed to render justice in plaintiff's aggravated assault case and "continuing on the factory system of criminal injustice because there judges have power and Plaintiff at the time was ignorance of the law;" (3) referenced a non-existent Fifth Circuit Order in appellate cause no. 14-50061, allegedly issued December 10, 2014;1 (4) argued there was no probable cause to arrest plaintiff for aggravated robbery or aggravated assault with a deadly weapon because no knife was found at the crime scene; and (5) argued this Court should ignore the Supreme Court's holding in Heck v. Humphrey.
A complaint filed by a prisoner may be dismissed as frivolous regardless of whether any filing fee or portion thereof had been paid. Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 527 U.S. 1041 (1999). Title 28 U.S.C. § 1915(e) accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 31-32 (1992); Neitzke v. Williams, 490 U.S. 319, 327 (1989). In an action filed in forma pauperis, a court may raise sua sponte the issue of whether an action is malicious or frivolous under § 1915(e). Neitzke v. Williams, 490 U.S. at 327. Dismissal of a claim as frivolous under § 1915(e) is permissible where the claim lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. at 325; Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). A complaint lacks an arguablebasis in law if it is based on an indisputably meritless legal theory. Rogers v. Boatright, 709 F.3d at 407; Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. at 32-33; Rogers v. Boatright, 709 F.3d at 407; Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (), cert. denied, 560 U.S. 944 (2010). This Show Cause Order is intended to comply with the foregoing suggestions by furnishing plaintiff with notice of the deficiencies in his original complaint and an opportunity to file an amended complaint which does allege specific facts sufficient to avoid summary dismissal of his claims herein as frivolous.
42 U.S.C. § 1983 does not create any substantive rights, but instead was designed to provide a remedy for violations of federal statutory and constitutional rights. Sepulvado v. Jindal, 729 F.3d 413, 420 n.17 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014). There are two essential elements to a Section 1983 action: (1) the conduct in question must be committed by a person acting under color of state...
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