IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CEDRIC MCNEAL, §

TDCJ-CID No. 02317254, §

§

Plaintiff, §

§

v. § 2:22-CV-85-Z-BR

§

STEVE RILEY, et al., §

§

 Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

TO DISMISS § 1983 CLAIM

Plaintiff CEDRIC MCNEAL, acting pro se and while a prisoner incarcerated in the Texas 

Department of Criminal Justice, filed suit pursuant to Title 42, United States Code, section 1983 

complaining against Steve Riley (probation officer) and Dan Schapp (Judge of the 180th District 

Court). (ECF 3). Specifically, Plaintiff claims that Defendant Riley is liable by placing illegal 

probation violations on Plaintiff and Defendant Schaap is liable for revoking Plaintiff’s probation.

(Id. at 3–4). 

These claims are not cognizable under Title 42 U.S.C. Section 1983. Further, a request 

for release from confinement—is not cognizable under section 1983. See Wilkinson v. Dotson, 

544 U.S. 74, 78 (2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the 

fact or duration of his confinement.’” (quoting Preiser v. Rodriguez, 411 U.S. 475, 498 (1973))).

For the following reasons, Plaintiff’s civil rights complaint should be DISMISSED WITH 

PREJUDICE. The claims against each of the two Defendantsin Plaintiff’s complaint are BARRED 

by judicial and quasi-judicial immunity, respectively.

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I. STANDARD OF REVIEW

When a prisoner confined in any jail, prison, or other correctional facility brings an action 

with respect to prison conditions under any federal law, the Court may evaluate the complaint and 

dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is 

frivolous1 , malicious, fails to state a claim upon which relief can be granted, or seeks monetary 

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. §

1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by 

a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns 

prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every 

pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991).2

The Magistrate Judge has reviewed Plaintiff's pleadings and has viewed the facts alleged 

by Plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer 

by the Defendants.

II. THE LAW AND ANALYSIS

A. Claims Against Defendant Dan Schaap

The Supreme Court “has long recognized” that immunity doctrines protect certain potential 

defendants from liability in tort suits. See Rehberg v. Paulk, 566 U.S. 356, 361 (2012). Judges, for 

example, are absolutely immune from monetary liability “for all judicial acts that are not 

performed in the clear absence of jurisdiction, however erroneous the act and however evil the 

1 A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F. 3d 114, 115 (5th 

Cir. 1993); see Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

2 Cf. Green vs. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) (“Of course, our discussion of Spears should 

not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A 

district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint 

alone or the complaint together with the Watson questionnaire.”).

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motive.” Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir. 1989). Further, judicial immunity is an 

immunity from suit and not merely from the ultimate assessment of damages. Ballard, 413 F.3d at 

515 (citing Mireles v. Waco, 502 U.S. 9, 11 (1991)). “Although unfairness and injustice to a litigant 

may result on occasion, ‘it is a general principle of the highest importance to the proper 

administration of justice that a judicial officer, in exercising the authority vested in him, shall be 

free to act upon his own convictions, without apprehension of personal consequences...’” Ballard, 

413 F.3d at 515 (citations omitted). This immunity “prevent[s] harassment and intimidation that 

could otherwise result if disgruntled litigants – particularly criminal defendants and inmates –

could vent their anger by suing ... the person or persons who rendered an adverse decision.” 

Johnson, 870 F.2d at 996–97.

The doctrine of absolute judicial immunity bars this action and requires dismissal as to 

Defendant Dan Schaap. Judges are absolutely immune from liability for damages for judicial acts 

“that are not performed in clear absence of all jurisdiction, however erroneous the act and however 

evil the motive.” Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir. 1989), cert. denied, 492 U.S. 921 

(1989). Plaintiff in this suit claims the defendant state court judge wrongfully convicted Plaintiff 

on false charges and wrongfully revoked his probation. (ECF 3 at 3). 

The acts complained of (presiding over Plaintiff’s criminal case and revoking Plaintiff’s 

probation) were judicial in nature. The Fifth Circuit weighs four factors in determining whether 

an act is “judicial.” These factors are as follows:

(1) whether the specific act complained of is a normal judicial function;

(2) whether the acts occurred in the courtroom or in an appropriate related space, such as 

the judge’s chambers;

(3) whether the controversy centered around a case pending before the court; and

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(4) whether the acts arose directly out of a visit to the judge in his official capacity.

McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972). These factors are construed liberally in favor 

of immunity. Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985). Even assuming all facts 

alleged by Plaintiff are true, Defendant Schaap’s actions in this case of presiding over a criminal 

proceeding and declining to dismiss the charges meet all the criteria for judicial acts. It cannot be 

said that any of these actions were taken in clear absence of jurisdiction. The judicial actions of 

Defendant Schaap, including conviction of any crime and revocation of probation, are covered 

under the doctrine of judicial immunity and are entirely barred. 

B. Claims Against Defendant Steve Riley

Here, Plaintiff’s alleges that Defenant Riley “illegally set probation violations upon me 

that I did not violate that lead [Defendant] Schaap to illegally revoke my probation.” (ECF 3 at 4). 

In response to the Court’s questionnaire, Plaintiff alleges that his probation should have been reinstated because “the new charge that violated the probation was dismissed” and “there were fake 

technical violation [sic] that I did not commit.” (ECF 6 at 2). 

Parole and probation officers who carry out functions that are adjudicatory in nature, or 

that have an integral relationship to judicial decision making, are protected by absolute quasijudicial immunity. See Norman v. Cmty. Supervision & Corr. Dep't, No. 7:11-CV-023-O-KA, 

2011 U.S. Dist. LEXIS 41255, at *3 (N.D. Tex. Mar. 23, 2011). Federal courts have applied this 

form of immunity from suit to quasi-judicial determinations by parole officers, such as imposing 

parole conditions. On the other hand, parole and probation officers who engage in or carry out 

essentially law enforcement functions are entitled only to qualified immunity. See Colvin V. 

LeBlanc, 2 F.4th 494, 2021 U.S. App. LEXIS 18761, 2021 WL 2562449, *5 (5th Cir. Jun, 23, 

2021) (noting that the district court needed to analyze whether a defendant parole officer was 

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engaged in the exercise of judicial functions or administrative functions). “Parole officers are 

entitled to absolute immunity from liability for their conduct in parole decision and in the exercise 

of their decision making powers.” Littles v. Board of Pardons and Paroles Division, 68 F.3d 122, 

123 (5th Cir. 1995).

On the limited allegations of “fake technical violation” the undersigned interprets 

Plaintiff's allegations against Defendant Riley to be in his prosecutorial/judicial role rather than in 

any administrative function, specifically the imposition of parole conditions. Thus, Defendant 

Riley is entitled to absolute quasi-judicial immunity in this matter. 

III. FINDINGS AND CONCLUSIONS

The undersigned makes the following findings and conclusions:

1. Defendant Schaap was a state court district judge acting within the scope of his

judicial duties, during the relevant times and circumstances outlined by Plaintiff’s 

complaint.

2. Defendant Schaap is entitled to complete judicial immunity from suit on the 

allegations contained in Plaintiff’s complaint, as outlined above.

3. Plaintiff’s claims against Defendant Schaap are entirely barred by absolute judicial 

immunity.

4. Defendant Riley was a probation officer acting within the scope of his adjudicatory 

duties, during the relevant times and circumstances outlined by Plaintiff’s 

complaint. 

5. Defendant Riley is entitled to absolute quasi-judicial immunity from suit on the 

allegations contained in Plaintiff’s complaint, as outlined above.

6. Plaintiff’s claims against Defendant Riley are entirely barred by absolute quasijudicial immunity.

7. Plaintiff’s lawsuit being barred by immunity against all the defendants, it is subject 

to dismissal pursuant to Title 28, United States Code, section 1915.

IV. RECOMMENDATION

For the reasons set forth above and pursuant to Title 28, United States Code, sections 

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1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), it is the 

RECOMMENDATION of the Magistrate Judge to the District Judge that the Civil Rights 

Complaint by Cedric McNeal filed pursuant to Title 42, United States Code, section 1983 be 

DISMISSED WITH PREJUDICE AS FRIVOLOUS as his suit is barred by the defendants’ 

judicial and quasi-judicial immunity. It is further recommended that this matter be considered a 

strike within the meaning of 28 U.S.C. § 1915(g). 

V. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusions 

and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED on March 15, 2023.

____________________________________

LEE ANN RENO

UNITED STATES MAGISTRATE JUDGE

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions, and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See 28 

U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions, and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), 

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery 

Servs., Inc. v. Griffin, 676 F.3d 512, n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276–

77 (5th Cir. 1988).

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