Macias v. Raul A. (Unknown), Badge No. 153, 93-8354

Citation23 F.3d 94
Decision Date16 June 1994
Docket NumberNo. 93-8354,93-8354
PartiesMoses MACIAS, Jr., Plaintiff-Appellant, v. RAUL A. (UNKNOWN), BADGE NO. 153, and Richard Gleinser, Captain, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Moses Macias, Jr., pro se.

Appeal from the United States District Court for the Western Division of Texas.

Before WISDOM and BARKSDALE, Circuit Judges, HARMON, 1 District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal turns primarily on the extent to which we are required to go beyond the allegations for an in forma pauperis, pro se complaint, and speculate as to the facts that the plaintiff might allege if given yet another opportunity to assert a nonfrivolous claim. This civil rights action by Moses Macias, Jr., arises out of two traffic citations that he received, and was dismissed pursuant to 28 U.S.C. Sec. 1915(d). Because we hold that the district court did not abuse its discretion in so doing, we AFFIRM.

I.

Proceeding pro se and in forma pauperis, Macias filed his complaint in March 1993, apparently attempting to state claims arising from an incident that occurred in 1992, in Bexar County, Texas, when he was stopped by a San Antonio police officer because his automobile tail light was not operating, and given one or more traffic tickets. As set forth below, neither Macias's description of the events that transpired then, nor his claim for relief, is clear. Of course, in determining whether the district court abused its discretion in dismissing the complaint, we construe those allegations liberally.

Macias's complaint, filed against (1) San Antonio officer Raul A. (Unknown), Badge No. 153, (2) Police Captain Richard Gleinser, and (3) Municipal Courts, San Antonio, Texas, alleged that he was stopped by the officer because the right tail light lens of his car was out; that he was unaware of the defective light until the stop; and that liability insurance is not admissible, under the Federal Rules of Evidence, as to whether that person acted negligently. As relief, Macias requested that the decision of the defendant be reversed; that he recover the cost of the action; and that the court grant such other relief as it deemed appropriate.

After his complaint was filed, Macias completed a questionnaire provided by the magistrate judge to clarify his allegations. In it, Macias was asked to "describe in detail the facts and circumstances which substantiate the allegations" in the complaint. Macias responded with the arguments that a person's lack of knowledge is a defense to prosecution; that evidence of liability insurance is not admissible under the Federal Rules of Evidence; and that liability insurance is unconstitutional.

In response to the request to state "exactly what it is that [Raul A.] either did or failed to do that you believe gives you the right to recover judgment against him," Macias stated: "First of all, Moses Macias, Jr. was [ ]unaware of any wrongdoing, and it is a defense to prosecution. See 8.02, 8.03 Penal Code. Also, Liability insurance is not a federal statute." And, in response to the request to state what Captain Richard Gleinser did or did not do, Macias stated:

Municipal Court issued a warrant for my arrest for two tickets, improper lights tail lamp lens, and no valid liability insurance. Since Captain Richard Gleinser signed the warrant/capias pro fine Notice, I assume he should be served or the Clerk of the Municipal Court, whichever is proper.

When requested to describe his injuries, Macias stated:

Humiliation, Embarrassment, just because the lens was out. I, Moses Macias, Jr., was ordered around to stand in different positions, was also search[ed] outside the car without any probable cause. Search and seizure laws are very strict. An officer needs a warrant and the Warrant has to be specific on where to search and the officers needs probable cause, an affidavit made by oath, by a witness describing exactly where to search. 2 Macias stated further that the damages he sought were the result of a policy, practice or custom of Bexar County, which he described as "common law". When asked about a San Antonio policy, practice or custom, Macias stated that "state law and federal law state that there should be no unnecessary force, or excessive force, section 9.51. There should be no coercion".

The magistrate judge recommended dismissal pursuant to Sec. 1915(d), concluding that the two individual defendants were entitled to qualified immunity, and that Macias had failed to identify or make factual allegations of any policy, practice, or custom by either San Antonio or Bexar County. The magistrate judge concluded also that Macias named the wrong defendant in his assertion of the unconstitutionality of the Texas requirement of proof of liability insurance, and that Texas courts had upheld its constitutionality.

Macias filed objections to the magistrate judge's report and recommendation. Concerning the alleged search, he stated that

the officer violated statutory and constitutional rights by searching Moses Macias, Jr. without any probable cause. An officer needs a warrant and the warrant has to be specific, on where to search and the officer needs probable cause, an affidavit made by oath, by a witness describing exactly where to search.

But, after de novo review, the district court accepted the recommendation, and dismissed the complaint without prejudice.

II.

An IFP complaint may be dismissed as frivolous if it lacks an arguable basis in law or fact. 28 U.S.C. Sec. 1915(d); Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). Section 1915(d) "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 complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). And, in determining whether the complaint is frivolous, the district court is given broad discretion. Thompson v. Patteson, 985 F.2d 202, 205 (5th Cir.1993). We review such dismissals only for abuse of that discretion. Denton, --- U.S. at ----, 112 S.Ct. at 1734.

Although we construe IFP complaints liberally, particularly in the context of a Sec. 1915(d) dismissal, we are still bound by the allegations in the complaint, and are not free to speculate that the plaintiff "might" be able to state a claim if given yet another opportunity to add more facts to the complaint. In an effort to ensure that IFP claims are developed adequately, our circuit has encouraged district courts to hold hearings or provide questionnaires to IFP plaintiffs. Parker v. Carpenter, 978 F.2d 190, 191 & n. 2 (5th Cir.1992). This opportunity to expand the claims and underlying facts (with guidance from the district court through questioning at a hearing or a questionnaire tailored to the plaintiff's claims) limits our license to engage in speculation as to the existence of additional facts. For example, if an IFP plaintiff, in "amending" his complaint through a response to a questionnaire, alleges in that response that he received inadequate medical care while incarcerated, we should not reverse the dismissal of the complaint on the basis that the plaintiff could possibly add facts that would demonstrate that he was treated with deliberate indifference in the medical care that he received. As another example, if an IFP prisoner asserts in the questionnaire response that he has been denied recreation time, we should not reverse dismissal on the ground that he might also be able to assert a claim that the denial was in retaliation for his having filed a grievance.

Therefore, in considering this appeal, we keep in mind that Macias amended his complaint by his responses to written questions from the magistrate judge, questions that were specifically tailored to elicit relevant facts that might support his claims. And, Macias had an opportunity further to clarify his claims by his objections to the magistrate judge's report and recommendation. (But, as discussed infra, clarifying his claims in his objections does not constitute amending his complaint.) Even construing these matters liberally, as we must, they cannot be interpreted as raising anything other than a frivolous claim.

Macias's brief on appeal (which is a copy of his two-page objection to the report and recommendation) is, like his complaint, vague and unclear. Read most favorably to him, he raises three issues: (1) the propriety of qualified immunity in the context of a Fourth Amendment claim; (2) the constitutionality of the Texas statute requiring proof of automobile liability insurance; and (3) the viability of his suit against the San Antonio Police Department. 3

A.

Macias maintains that the police officers cannot assert qualified immunity as to the claimed illegal search. "Whether a government official is entitled to qualified immunity generally turns on the objective reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken." White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992) (citations and internal quotations omitted). "A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). We have interpreted Siegert as first requiring the determination whether the plaintiff has stated a constitutional violation before reaching the qualified immunity issue. White, 959 F.2d at 545 n. 4.

Macias concedes that the officer was justified in making the traffic stop, but apparently objects to a search that allegedly took place in conjunction with...

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