Freeze v. Griffith
| Citation | 849 F.2d 172 |
| Decision Date | 11 July 1988 |
| Docket Number | 87-4521,87-4530,Nos. 87-4499,s. 87-4499 |
| Parties | Douglas Warren FREEZE, Jr., Plaintiff-Appellant, v. George GRIFFITH, Defendant-Appellee, Douglas Warren FREEZE, Jr., Plaintiff-Appellant, v. Stanley LABOVE, et al., Defendants-Appellees, Douglas Warren FREEZE, Jr., Plaintiff-Appellant, v. James R. SAVOIE, et al., Defendants-Appellees. Summary Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Douglas Warren Freeze, Jr., pro se.
William M. Hudson, III, Patrick B. McIntire, Oats & Hudson, Lafayette, La., for defendant-appellee.
Appeals from the United States District Court for the Western District of Louisiana.
Before GEE, GARWOOD and JONES, Circuit Judges:
Appellant, a Louisiana inmate, was convicted and sentenced to nine years imprisonment for aggravated criminal damage to property in 1982. Acting pro se, he has subsequently filed at least twelve Sec. 1983 actions alleging violations of his civil rights. The district court heard evidence from July 31 to August 2, 1984 and again on January 20, 1987, in regard to the above-captioned cases [and two more as well]. In the above cases, the court dismissed some defendants and rendered judgment in favor of others. We likewise find it convenient to address Freeze's contentions arising from these three lawsuits in a consolidated opinion, inasmuch as the facts and defendants in each case overlap. All of these cases challenge actions by Cameron Parish, Louisiana officials connected with his conviction. Freeze's numerous challenges on appeal are meritless.
Freeze first alleges that George Griffith, a former deputy sheriff, perjured himself during the voir dire phase of Freeze's 1982 criminal trial in order to be selected as a juror, used undue influence over the jury to secure Freeze's conviction, and lied about his earlier perjury during the district court's Sec. 1983 hearings. Whether Griffith lied, either as a petit juror or as a witness, is immaterial, for in either capacity he is absolutely immune from liability for damages under 42 U.S.C. Sec. 1983. Imbler v. Pachtman, 424 U.S. 409, 423 n. 20, 96 S.Ct. 984, 991 n. 20, 47 L.Ed.2d 128 (1976) (grand jurors); Sunn v. Dean, 597 F.Supp. 79, 81-82 (N.D.Ga.1984) (trial jurors); Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983) (witnesses); Austin v. Borel, 830 F.2d 1356, 1359 (5th Cir.1987) (witnesses).
The district court did not err in dismissing appellant's charge that state judge Fontenot, district attorney Jones, probation officer Rutherford, and sheriff Savoie conspired to suppress evidence of Freeze's prior record, which would have revealed that Griffith previously arrested Freeze, in order to ensure Griffith's placement on the jury. 1 These claims founder on the officials' immunity and prescription defenses. The judge who presided over Freeze's trial is absolutely immune from Freeze's Sec. 1983 suit for damages, Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir.1982), as are the prosecuting attorney, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and the probation officer for failing to prepare properly the presentence report, Spaulding v. Nielsen, 599 F.2d 728, 729 (5th Cir.1979).
The only defendant remaining is Sheriff Savoie. The district court dismissed Freeze's action against Savoie based on prescription. The one-year Louisiana prescriptive period found in La.Civ.Code art. 3492, replacing former art. 3536, applies to Sec. 1983 actions against Louisiana state officials. Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 604 (5th Cir.1988). Freeze alleges that Savoie participated in a conspiracy to have him unjustly convicted. A state statute of limitations imposed in a Sec. 1983 action does not run until the plaintiff is in possession of the "critical facts" that he has been hurt and the defendant is involved. Lavallee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980). Freeze was aware August 27, 1982, the date of his conviction, that he had been hurt. The trial court found that Freeze These findings are not clearly erroneous. He filed suit, nonetheless, well after the one-year prescriptive period, on May 8, 1984.
Freeze complains that the court failed to subpoena his witnesses for his January 1987 hearing. The record does not reveal that Freeze ever requested the court to issue the subpoenas as required by Fed. Rule Civ.Proc. 45(a), however. Nor are we persuaded that the court abused its discretion in denying appellant's motion for a continuance, Wells v. Rushing, 755 F.2d 376 (5th Cir.1985), since appellant's preparation for the 1984 hearings reveals that he was aware of the subpoena procedures.
He next argues that the district court prevented him from presenting certain evidence at the January 1987 hearing. His failure to state what new evidence he sought to introduce or what the district court improperly did to preclude presentation render this issue unreviewable.
Freeze contends that the district court erred in refusing his motion to appoint counsel for him for his January 1987 hearing. A civil rights complainant has no right to the automatic appointment of counsel unless the case presents exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). The record indicates that appellant's complaints did not raise novel or complex issues and that he had the know-how to adequately investigate and present his case. Id. at 213. We find no abuse of discretion.
Appellant alleges that prison officials improperly opened and read his legal mail. Prison officials may censor nonlegal mail, Guajardo v. Estelle, 580 F.2d 748, 756-57 (5th Cir.1978), but not clearly-marked legal mail. Wolff v. McDonnell, 418 U.S. 539, 574-77, 94 S.Ct. 2963, 2983-85, 41 L.Ed.2d 935 (1974). The district court found that the prison officials did not open and read Freeze's legal mail. We have reviewed the record and are unpersuaded that this finding is clearly erroneous.
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