Shabazz v. Franklin

• Decision Date: 28 March 2005
• Docket Number: No. 3:04-CV-0602-N.,3:04-CV-0602-N.
• Citation: 380 F.Supp.2d 793
• Parties: Curtis SHABAZZ, ID # 522178, Plaintiff, v. Richard K. FRANKLIN, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

380 F.Supp.2d 793

Curtis SHABAZZ, ID # 522178, Plaintiff, v. Richard K. FRANKLIN, et al., Defendants.

No. 3:04-CV-0602-N.

United States District Court, N.D. Texas, Dallas Division.

March 28, 2005.

Curtis Shabazz, TDCJ Clements Unit, Amarillo, TX, pro se.

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

GODBEY, District Judge.

After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.

For the reasons stated in the Findings, Conclusions, and Recommendation, the Court DENIES the following motions filed by plaintiff: Motion to Amend (doc. 7); Motion for Leave of Court to Have Process Effected by a United States Marshal (doc. 8); Motion Seeking Leave to File Second Amendment/Supplement (doc. 11); Plaintiff's First Motion for an Extension of Time to Serve Defendants (doc. 12); and Motion for the Court to Intervene (doc. 13). In addition, the Court DEEMS MOOT plaintiff's Motion to Dismiss Certain Defendants (doc. 10). By separate judgment, the Court will formally dismiss this action consistent with the Findings, Conclusions, and Recommendation entered in this case.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

RAMIREZ, United States Magistrate Judge.

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

In March 2004, plaintiff filed this civil action pursuant to 42 U.S.C. § 1983 against his former attorney, Richard K. Franklin; Doug Dretke, Director of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ); Gary Johnson, former Director of TDCJ,¹ Kevin Navarro, Dallas Police Investigator; Jim Bowles,² former Dallas County Sheriff; Jim Oatman, Assistant District Attorney for Dallas County; John Vance, District Attorney of Dallas County; Bill Meili and David Pickett, Assistant Prosecutors for Dallas County; Jack Hampton, former Judge, and Monta R. Peterson, Dallas Police Officer.³ (Compl. at 1-2 and Attached Pages.)

Plaintiff alleges a conspiracy between defendants before and during plaintiff's 1991 state trial for an attempted murder of Katherine Burrow ("the conspiracy claims"). (See Compl. and Attached Pages.) Specifically, defense counsel allegedly conspired to violate plaintiff's civil rights by rendering ineffective assistance of counsel during that trial and depriving plaintiff of a fair trial. (Compl. at 2, Attached Pages at 5, 8-9.) The State defendants allegedly conspired to violate plaintiff's civil rights by denying him due process by presenting false testimony, suppressing favorable evidence, and in general depriving him of a fair trial. (Compl. at 2; Attached Pages at 1-4-9.) The TDCJ defendants allegedly conspired to continue the conspiracy and prevent its undoing by keeping plaintiff in isolated housing since July 1991 without legal representation. (Compl. at 2; Attached Pages at 1-3, 7-8, 14.) Plaintiff further alleges that the TDCJ defendants have used false disciplinary infractions as a pretext to keep him isolated and that their last overt act occurred October 2003 and "will in all likelihood reoccur 4-2004 due to 1-30-04 false disciplinary conviction on 3-03-2004" ("the disciplinary claims"). (Attached Pages at 7-8, 14.)

Plaintiff seeks a declaratory judgment that defendants have violated his civil rights. (Id. at 10.) He also seeks injunctive relief in the form of release from his unconstitutional conviction for attempted murder. (Id. at 10-11.) He concedes that he previously brought an action in 1993 against defendants for monetary damages but now submits that the Court did not adjudicate his claims because he had not overturned his state sentence. (See id. at 10 and Decl. attached to Compl.)

Although plaintiff initially sought to proceed in forma pauperis (IFP), he paid the filing fee for this action on May 4, 2004, after the Court noted that 28 U.S.C. § 1915(g)⁴ barred him from proceeding IFP because he had previously brought three or more civil actions or appeals in federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Plaintiff also paid a $25 sanction imposed in Shabazz v. Martin, No. 9:93-CV-0118-JH (E.D.Tex.) that would have prevented further pursuit of this action.

After commencing this action and paying the filing fee, plaintiff filed numerous documents with the Court, including: (1) a Motion to Amend (doc. 7) received May 20, 2004; (2) a Motion for Leave of Court to Have Process Effected by a United States Marshal (doc. 8) received on June 17, 2004, (hereinafter Mot. for Process); (3) a Notice of Lawsuit and Motion to Dismiss Certain Defendants (doc. 10) received July 1, 2004; (4) a Motion Seeking Leave to File Second Amendment/Supplement (doc. 11) received August 4, 2004, (hereinafter Second Mot. Amend); (5) Plaintiff's First Motion for an Extension of Time to Serve Defendants (doc. 12) received August 20, 2004; (6) a Motion for the Court to Intervene⁵ (doc. 13) received December 10, 2004; and (7) a document titled "Former Complaint" (doc. 14) received on December 30, 2004. To date, no process has been issued in this case.

II. PREVIOUS LITIGATION

As noted above, plaintiff has previously filed numerous civil actions in federal court. (See Attached Pages at 13 (showing thirteen previous cases).)⁶ Plaintiff concedes that his current action "was previously [in] this Court in Number 3-93-CV-648." (See Compl.) Named in that in forma pauperis action, entitled and numbered Shabazz v. Franklin, No. 3:93-CV-0648-G (N.D. Tex.1993), were Franklin, Meili, Navarro,⁷ Pickett, Hampton, Peterson and Bill Long. (Compl. received by Court on Apr. 1, 1993). On October 26, 1993, a United States Magistrate recommended that the Court dismiss that action as frivolous. See id. (Findings & Recommendation dated Oct. 26, 1993). The Magistrate Judge found the action barred by the statute of limitations, except for claims against Judge Hampton which were barred by immunity. Id. On November 8, 1993, the District Court accepted the findings of the Magistrate Judge and dismissed the action as frivolous. See id. (Order and Judgment dated Nov. 8, 1993).

At least three later federal cases are also relevant to the instant litigation. In at least two of those prior actions, plaintiff unsuccessfully challenged disciplinary proceedings based upon alleged false disciplinary charges. See Shabazz v. Collins, No. 4:95-CV-0022 (S.D.Tex.) (Order of Partial Dismissal dated May 22, 1995, which dismissed claims against Gary Johnson and other TDCJ employees); Shabazz v. Harris, No. 4:95-CV-3145 (S.D.Tex.) (Order of Partial Dismissal dated Dec. 21, 1995). In addition, plaintiff filed a previous action against Gary Johnson for keeping him in administrative segregation since July 1991. See Shabazz v. Johnson, No. 5:01-CV-0070 (E.D.Tex.2001) (Compl. received on Dec. 4, 2000, and transferred to a different division in 2001 after payment of filing fee). On January 24, 2002, a Magistrate Judge recommended that the action be dismissed as untimely. Id. (report and recommendation). On July 1, 2002, the District Court adopted that recommendation, and on July 2, 2002, dismissed the action with prejudice. Id. (Order and Judgment). On March 17, 2003, the Fifth Circuit Court of Appeals found the action timely, but affirmed the dismissal because the complaint did "not support an arguable constitutional violation." Shabazz v. Johnson, No. 02-41060, 64 Fed.Appx. 417, 2003 WL 1524652, *1 (5th Cir.2003).

III. MOTIONS FOR LEAVE TO AMEND

In his first motion for leave to amend, plaintiff seeks to add John Wiley Price, County Commissioner's Court; Bill Long or his successor Jim Hamlin, District Clerk of Dallas County; and Jean Hill, Court Reporter as defendants in this action. (See Mot. Amend. at 1-3A.)⁸ Plaintiff alleges that these individuals knew of the conspiracy which lies at the heart of this action, but did nothing to stop or prevent it. (Id. at 3A.) The motion to amend also reiterates plaintiff's claims of ineffective assistance of counsel, prosecutorial misconduct, civil conspiracy, and illegal restraint. (Id. at 5-27.) Subsequent to the first motion to amend, plaintiff filed a request to dismiss these three defendants, as well as defendant Meili. (See Notice of Lawsuit & Mot. to Dismiss at 2.) Plaintiff also filed a second motion seeking leave to file a second amendment/supplement to assert (1) a violation of his right to equal protection based upon a manufactured indictment that led to his attempted murder conviction; (2) suppression of evidence by Franklin; (3) unfair proceedings at trial and on appeal; (4) denial of witnesses to testify on his behalf; (5) violation of due process due to ineffective assistance of counsel; and (6) a double jeopardy violation. (See Second Mot. Amend at 1-21.)

Fed.R.Civ.P. 15(a) permits parties to amend their pleadings "once as a matter of course at any time before a responsive pleading is served." Because no responsive pleading has been served in this action, Rule 15(a) permits plaintiff to amend his original complaint without leave of court. Plaintiff, however, has not filed an amended complaint. Instead, he has twice filed motions seeking leave to amend. When a party moves to amend his complaint, he must do so in a procedurally proper manner by complying with applicable rules of procedure. The local rules of this Court require such party "to include...