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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

 

MARK FRANKE #1778731 § 

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V. § A-20-CV-202-RP-SH 

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TRAVIS COUNTY § 

 

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

TO: THE HONORABLE ROBERT PITMAN 

 UNITED STATES DISTRICT JUDGE 

 The Magistrate Judge submits this Report and Recommendation to the District Court 

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules. Before the 

Court is Plaintiff’s civil rights complaint. Plaintiff, proceeding pro se, has been granted leave to 

proceed in forma pauperis. 

I. STATEMENT OF THE CASE 

 On February 29, 2012, Plaintiff was convicted of engaging in organized criminal activities 

in Tom Green County and sentenced to 25 years in prison. While on parole in that case, Plaintiff 

was arrested and convicted in federal court of possession of a firearm by a felon. See United States 

v. Franke, No. A-18-CV-362-LY (W.D. Tex.). On September 19, 2019, the Honorable Lee Yeakel 

sentenced Plaintiff to 120 months’ imprisonment. After he was sentenced in federal court, 

Plaintiff’s parole was revoked and he was transferred to the Travis County State Jail, where he was 

incarcerated when he filed his complaint pursuant to 42 U.S.C. § 1983. 

Plaintiff alleges that he was arrested on May 10, 2018, in Travis County, Texas. The 

presentence investigation report filed in his federal criminal case indicates that Plaintiff was 
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injured during his arrest when he fled. Plaintiff complains that the deputies who arrested him used 

excessive force by placing him in restraints that caused him serious bodily injury. Plaintiff does 

not sue the deputies involved in the arrest. Rather, he only sues Travis County. He seeks damages 

for past and future medical expenses, punitive damages, and nominal damages. 

II. DISCUSSION AND ANALYSIS 

 A. Standard under 28 U.S.C. § 1915(e) 

 An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) 

if the court determines the complaint is frivolous, malicious, fails to state a claim on which relief 

may be granted, or seeks monetary relief against a defendant who is immune from suit. A dismissal 

for frivolousness or maliciousness may occur at any time, before or after service of process and 

before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). 

When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations liberally. 

See Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status does not offer 

him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial 

machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. 

MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). 

 B. Travis County Liability 

 A political subdivision cannot be held responsible for a deprivation of a constitutional right 

merely because it employs a tortfeasor; in other words, a local government unit cannot be held 

responsible for civil rights violations under the theory of respondeat superior. Johnson v. Moore, 

958 F.2d 92, 94 (5th Cir. 1992). The standard for holding a local government unit responsible 

under § 1983 requires that there be a custom or policy that caused the plaintiff to be subjected to 

the deprivation of a constitutional right. Id.; see also Collins v. City of Harker Heights, Tex., 916 
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F.2d 284, 286 (5th Cir. 1990), aff’d, 503 U.S. 115 (1992). Thus, Travis County would violate an 

individual’s rights only through implementation of a formally declared policy, such as direct orders 

or promulgations, or through informal acceptance of a course of action by its employees based on 

custom or usage. Bennett v. City of Slidell, 728 F.2d 762, 768 (5th Cir. 1984). A single decision 

made by an authorized governmental decisionmaker to implement a particular course of action 

represents an act of official government “policy.” Pembaur v. Cincinnati, 475 U.S. 469, 481 

(1986). Plaintiff failed to identify a policy, practice, or custom of Travis County that caused a 

deprivation of his constitutional rights. 

III. RECOMMENDATION 

 The undersigned therefore recommends that Plaintiff’s complaint be dismissed without 

prejudice for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 

1915(e). 

 It is further recommended that Plaintiff be warned that if he files more than three actions 

or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to 

state a claim on which relief may be granted, he will be prohibited from bringing any other actions 

in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 

1915(g). 

 In the event that this Report and Recommendation is accepted, adopted or approved, it is 

recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the 

keeper of the three-strikes list. 

IV. OBJECTIONS 

The parties may file objections to this Report and Recommendation. A party filing 

objections must specifically identify those findings or recommendations to which objections are 
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being made. The District Court need not consider frivolous, conclusive, or general objections. See

Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file 

written objections to the proposed findings and recommendations contained within this Report 

within fourteen (14) days after being served with a copy of the Report shall bar that party from de 

novo review by the District Court of the proposed findings and recommendations and, except on 

grounds of plain error, shall bar the party from appellate review of proposed factual findings and 

legal conclusions accepted by the District Court to which no objections were filed. See 28 U.S.C. 

§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 472-74 (1985); Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). 

SIGNED on March 27, 2020.

 SUSAN HIGHTOWER 

 UNITED STATES MAGISTRATE JUDGE