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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

 

JAIME APODACA #02309222 § 

 § 

V. § A-20-CV-221-LY-SH 

 § 

MARGARET MOORE, et al. § 

 

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

TO: THE HONORABLE LEE YEAKEL 

 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 

At the time he filed his complaint, Plaintiff was confined in the Travis County Correctional 

Complex. Plaintiff was subsequently transferred to the Texas Department of Criminal Justice – 

Correctional Institutions Division. 

Plaintiff executed his complaint on February 21, 2020. On February 14, 2020, in the 427th 

Judicial District Court of Travis County, Texas, in Cause No. D-1-DC-19-202030, Plaintiff was 

convicted of aggravated assault with a deadly weapon, manslaughter, and aggravated assault 

“date/family/house w/weapon.” Plaintiff was sentenced to 20 years’ imprisonment for each count, 

and the trial court ordered Plaintiff’s sentences to run concurrently. Plaintiff filed a direct appeal, 

which is currently pending. 
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Plaintiff challenges actions taken by “County District Attorneys and State Prosecutors.” 

Plaintiff generally alleges “a portion of the people under defendants are denied equal protection 

through neglect, refusal to enforce their provisions, and executing government policies inflicting 

injuries while hiding behind prosecutorial immunity.” Compl. 2, ECF No. 1. Plaintiff claims that 

“senior officials had knowledge of a pattern of constitutionally offensive acts of their subordinates 

but failed to take remedial steps, and deeply embedded traditional ways of carrying out state 

policies and practices with [sic] this Plaintiff complains are often tougher and truer law then the 

dead words of written text.” Id.

Specifically, Plaintiff alleges the arrest affidavit was fraudulent, the magistrate’s signature 

on the arrest affidavit was fraudulent, he never received material or tangible things in pretrial 

discovery, his lawyer never objected to certain pretrial matters, his indictment was defective, he 

was not present during pretrial proceedings, he did not receive a fair and impartial jury, the 

prosecutors knowingly and intelligently pushed fraudulent paperwork in trial, and the prosecutor 

violated its duty to seek justice instead of seeking a conviction. Id. at 3. 

Plaintiff sues Travis County District Attorney Margaret Moore, Assistant Travis County 

District Attorneys James Winters and Christy May, Travis County District Clerk Velva Price, the 

Travis County District Attorney’s Office, the Travis County Prosecutors Office, Travis County 

Attorney David Escamilla, and State Prosecutors. Plaintiff requests a declaratory judgment, a 

preliminary and permanent injunction, compensatory damages in the amount of $425,000, punitive 

damages in the amount of $3.5 million, and “monetary damages” in the amount of $3.5 million. 

Plaintiff states that he seeks damages against the defendants in their official capacities. 

 
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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. Eleventh Amendment Immunity 

 Plaintiff’s claims seeking monetary relief against the Travis County District Attorney’s 

Office, the Travis County Prosecutor’s Office, State Prosecutors and District Attorney Margaret 

Moore, Assistant District Attorney James Winters and Assistant District Attorney Christy May in 

their official capacities are barred by Eleventh Amendment Immunity.1

 When acting in their 

official capacities, Texas district attorneys are considered agents of the state, which are immune 

from claims for damages under the Eleventh Amendment. Neinast v. Texas, 217 F.3d 275, 280 

(5th Cir. 2000); Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997); Quinn v. Roach, 326 Fed. 

App’x 280, 292-293 (5th Cir. 2009). 

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 Had Plaintiff sued the prosecutors in their individual capacities, his claims would be barred by 

prosecutorial immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Burns v. Reed, 500 U.S. 

478, 487-92 (1991); Imbler v. Pachtman, 424 U.S. 409, 427-31 (1976). 
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 C. Supervisory Liability 

 To the extent Plaintiff sues Clerk of Court Velva Price or Travis County Attorney David 

Escamilla, he fails to allege that they were personally involved in any of his alleged constitutional 

violations. This failure is fatal to his claims. See Brinkmann v. Dallas County Deputy Sheriff Abner, 

813 F.2d 744, 748 (5th Cir. 1987); see also Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) 

(observing that “[p]ersonal involvement is an essential element of a civil rights cause of action”). 

“Supervisory officials are not liable under § 1983 for the actions of subordinates on any theory of 

vicarious liability”; they must have been “personally involved in the alleged constitutional 

deprivation or have engaged in wrongful conduct that is causally connected to the constitutional 

violation.” Turner v. Lt. Driver, 848 F.3d 678, 695-96 (5th Cir. 2017). 

 D. Travis County Liability 

 Plaintiff’s claims against Defendants Price and Escamilla in their official capacities are 

brought against Travis County. However, 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 F.2d 284, 286 (5th Cir. 1990). 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 
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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. 

 E. Heck v. Humphrey

 Plaintiff’s claims also are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and 

the Fifth Circuit Court of Appeals’ application of Heck to state prisoner § 1983 lawsuits in Boyd 

v. Biggers, 31 F.3d 279 (5th Cir. 1994). In Heck, the Supreme Court held: 

[I]n order to recover damages for allegedly unconstitutional conviction or 

imprisonment, or for other harm caused by actions whose unlawfulness would 

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 

conviction or sentence has been reversed on direct appeal, expunged by executive 

order, declared invalid by a state tribunal authorized to make such determination, 

or called into question by a federal court’s issuance of a writ of habeas corpus. 

Although the Heck opinion involved a bar to claims for monetary damages, a dismissal of 

a claim for injunctive or declaratory relief may also be made pursuant to Heck. See Reger v. 

Walker, 312 F. App’x 624, 625 (5th Cir. 2009) (noting that claims, “whether for damages, 

declaratory judgment, or injunctive relief,” are not cognizable in § 1983 action if they imply 

invalidity of conviction); see also Clarke v. Stadler, 154 F.3d 186, 190-91 (5th Cir. 1998) (en banc) 

(holding that claim for prospective injunctive relief that would imply invalidity of prisoner’s 

conviction may be dismissed without prejudice subject to Heck). 

In this case Plaintiff’s conviction has not been reversed, expunged, invalidated, or called 

into question by a federal court’s issuance of writ of habeas corpus. Thus, his claims are barred by 

Heck. 

III. RECOMMENDATION 

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

prejudice as frivolous pursuant to 28 U.S.C. § 1915(e) and subject to Heck. 
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 It is further recommended that the Court include in its judgment a provision expressly and 

specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in 

(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant 

monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff 

from filing any lawsuits in this Court without first obtaining the permission from a District Judge 

of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing 

some combination of these sanctions. 

 It is further recommended that Plaintiff should be warned that for causes of action which 

accrue after June 8, 1995, the Texas Department of Criminal Justice, on receipt of a final order of 

a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate 

while the inmate was in the custody of the Department or confined in county jail awaiting transfer 

to the Department following conviction of a felony or revocation of community supervision, 

parole, or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good 

conduct time, if the Department has previously received one final order; (2) 120 days of an 

inmate’s accrued good conduct time, if the Department has previously received two final orders; 

or (3) 180 days of an inmate’s accrued good conduct time, if the Department has previously 

received three or more final orders. See TEX. GOV’T CODE ANN. § 498.0045 (Vernon 2005). 

 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). 
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 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 

TDCJ - Office of the General Counsel and 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 

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 (1985); Douglass v. United Servs. Auto. 

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

SIGNED on April 10, 2020.

 SUSAN HIGHTOWER 

 UNITED STATES MAGISTRATE JUDGE