IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DAVID G. SCOTT (Travis Co. #1919310) §

§

V. § A-20-CV-508-LY

§

TRAVIS COUNTY DISTRICT §

ATTORNEY MARGARET MOORE §

REPORT AND RECOMMENDATION

OF 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 complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in

forma pauperis. 

 STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the 

the Travis County Correctional Complex in Del Valle, Texas. State court records reflect Plaintiff

was indicted on August 8, 2019, for Burglary of a Habitation, Enhanced in cause number D-1-DC19-301238. On January 16, 2020, Plaintiff was reindicted in cause number D-1-DC-20-904003. 

In his civil-rights complaint Plaintiff sues Travis CountyDistrict AttorneyMargaret Moore. 

He alleges:

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 1 of 6
[D]uring the months of January and March[, Moore] aired campaign commercials

with percentages on Judicial proceedings. Margaret Moore used Judicial proceedings

to aid in her politics. She is quite simply ‘to convict to make herself look better to

voters with egregious investigation and administration.’ Under her administration,

Justice would be replaced by stage show with Margaret Moore as the lead actor. 

Using prosecution as a substitute for Justice and Political manuvering [sic] and

everybody that has been in front of a grand jury has been met with this manuvering

[sic]. 

Plaintiff seeks “$7,500 in punitive and monetary damages, relief in a public announcement of her

wrongdoings.”

Plaintiff previously challenged his pretrial detention in a civil-rights suit in Cause No. A-20-

CV-103-LY. The Court dismissed his complaint on April 13, 2020. Plaintiff has also challenged

his pretrial detention in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 in

Cause No. A-20-CV-287-LY. His petition for writ of habeas corpus is currently pending. 

 DISCUSSION AND ANALYSIS

A. Standard Under 28 U.S.C. § 1915(e)

According to 28 U.S.C. § 1915A(b)(1), this Court is required to screen any civil complaint

in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the

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

may be granted. See also 28 U.S.C. § 1915(e)(2)(B) (directing court to dismiss case filed in forma

pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state

claim on which relief may be granted).

An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke

v. Williams, 490 U.S. 319, 325 (1989). “A complaint lacks an arguable basis in law if it is based on

an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest

2

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 2 of 6
which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (internal

quotation and citation omitted). 

A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional

scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v.

Thaler, 14 F.3d 8, n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether

a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same

standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152

(5th Cir. 2011); see also FED. R. CIV. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–56, 570 (2007)); see FED.R.CIV.P. 12(b)(6). These factual allegations

need not be detailed but “must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. A conclusory complaint—one that fails to state material facts or merely

recites the elements of a cause of action—may be dismissed for failure to state a claim. See id. at

555–56.

B. Eleventh Amendment Immunity

Plaintiff’s claims seeking monetary relief against District Attorney Margaret Moore, in her

official capacity are barred by Eleventh Amendment Immunity. 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. Appx. 280, 292–293

3

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 3 of 6
(5th Cir. May 4, 2009). Therefore, Plaintiff’s claims against the Travis County District Attorney,

in her official capacity for monetary damages, are barred. 

C. Prosecutorial Immunity

Plaintiff’s claims against District Attorney Margaret Moore in her individual capacity for

monetary damages are barred by prosecutorial immunity. Prosecutors are absolutely immune from

liability under the federal civil rights statutes with regard to actions taken by them within the course

and scope of representing the governmental agencies and subdivisionsin judicial proceedings. Under

the doctrine of prosecutorial immunity, a prosecutor is absolutely immune in a civil rights lawsuit

for any action taken in connection with a judicial proceeding. 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). “[A]cts undertaken by the prosecutor in preparing for the initiation of judicial proceedings

or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the

protection of absolute immunity.” Boyd, 31 F.3d at 285 (quoting Buckley v. Fitzsimmons, 509 U.S.

at 273). Prosecutorial immunity applies to the prosecutor’s actions in initiating the prosecution and

in carrying the case through the judicial process. Boyd, 31 F.3d at 285; Graves v. Hampton, 1 F.3d

315, 318 (5th Cir. 1993). Thus, a prosecutor is immune from civil rights liability for actions taken

in connection with a judicial proceeding, even if taken maliciously. Brummett v. Camble, 946 F.2d

1178, 1181 (5th Cir. 1991); Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987). 

The Court recognizes that not all prosecutorial functions are protected. In Imbler, the Court

declared that absolute immunity applied to a prosecutor’s actions in “initiating a prosecution and in

presenting the State’s case.” Imbler, 424 U.S. at 431. This immunity protected the alleged knowing

use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. In

4

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 4 of 6
Imbler, the Court left open the issue of whether absolute immunity applied to administrative or

investigative acts. However, in Burns, the Court answered that question, stating that absolute

immunity does not apply to investigative or administrative acts performed by prosecutors. Burns,

500 U.S. at 493.

To the extent Plaintiff challenges actions or inactions taken by the prosecuting attorney

during Plaintiff’s criminal proceedings Defendant Moore is protected by prosecutorial immunity. 

Moreover, Plaintiff has not alleged a valid violation of his constitutional rights. 

RECOMMENDATION

It is therefore recommended that Plaintiff’s claims seekingmonetaryrelief against Defendant

Moore in her official capacity be dismissed without prejudice for want of jurisdiction and Plaintiff’s

remaining claims be dismissed with prejudice for failure to state a claim upon which relief can be

granted pursuant to 28 U.S.C. § 1915(e).

It is further recommended that Plaintiff be warned that if Plaintiff 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, then 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 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.

5

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 5 of 6
OBJECTIONS

Within 14 days after receipt of the magistrate judge’s report, any party may serve and file

written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636

(b)(1)(c). Failure to file written objections to the proposed findings and recommendations contained

within this report within 14 days after service shall bar an aggrieved party from de novo review by

the district court of the proposed findings and recommendations and from appellate review of factual

findings accepted or adopted by the district court except on grounds of plain error or manifest

injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc); Thomas

v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).

SIGNED on May 28, 2020.

_____________________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

6

Case 1:20-cv-00508-LY Document 6 Filed 05/28/20 Page 6 of 6