IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVYN D. STONE, JR, #0625900, §

PLAINTIFF, §

§

V. § CIVIL CASE NO. 3:22-CV-708-E-BK

§

ERIC LABOVITZ, ET AL, §

DEFENDANTS. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case was referred to the 

United States magistrate judge for management, including the issuance of findings and a 

recommended disposition where appropriate. Upon review of the relevant pleadings and 

applicable law, this action should be summarily DISMISSED WITH PREJUDICE as frivolous

and for failure to state a claim. 

I. BACKGROUND

On March 28, 2022, Plaintiff Kevyn D. Stone, a pretrial detainee at the Tarrant County 

Jail, filed a complaint on the prisoner civil rights complaint form against (1) Eric Labovitz, his 

court appointed defense counsel, (2) the 396th Court, and (3) the Dallas County Jail. Doc. 3 at 1. 

Stone asserts that Labovitz, who is representing him on pending Tarrant County criminal 

charges, “made racial/derogatory remarks” towards Black Americans and stated “Black Lives 

don’t [sic] matter to him as well as he didn’t care about George Floyds [sic] life.” Doc. 3 at 5, 8. 

As a result, Stone alleges that Lavobitz “never file[d] a motion, gave me a copy of indictment, 

copy of police report, allow me to see video footage of my arrest, i.e. etc.” Doc. 3 at 8. 

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According to Stone, the 396th Court also “refused to intervene once [it] was made aware” of the 

situation with Labovitz. Doc. 3 at 4. 

Stone also sues the Dallas County Jail for his purportedly unlawful conviction for

possession “under a gram,” on which he was sentenced to three years’ imprisonment in 2001. 

Doc. 3 at 4-5, 8. Stone further avers that the 2001 conviction is being used to enhance his 

pending criminal charges in Tarrant County. Doc. 3 at 8. By this action, Stone seeks monetary 

compensation. Doc. 3 at 5. He also contends that Labovitz should lose “his job for his racial 

bias.” Doc. 3 at 5.

As detailed below, Stone claims lack an arguable basis in law. Therefore, this action 

should be dismissed as frivolous and for failure to state a claim.

II. ANALYSIS

Because Stone is proceeding in forma pauperis, his complaint is subject to screening 

under 28 U.S.C. § 1915(e)(2)(B). That statute provides for the sua sponte dismissal of a 

complaint if the Court finds that it (1) is frivolous or malicious, (2) fails to state a claim upon 

which relief may be granted, or (3) seeks monetary relief against a defendant who is immune 

from such relief. A complaint is frivolous when it “lacks an arguable basis either in law or in 

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in law 

when it is premised “on an indisputably meritless legal theory,” Id. at 327, and fails to state a 

claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief 

that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Court must always liberally construe pleadings filed by pro se litigants. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings “must be held to less stringent 

standards than formal pleadings drafted by lawyers”); Cf. FED. R. CIV. P. 8(e) (“Pleadings must 

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be construed so as to do justice.”). Even under the most liberal construction, however, Stone’s 

complaint is frivolous and fails to state a claim.

First, Labovitz could not have been acting under color of law, as is required to establish a 

civil rights violation under 42 U.S.C. § 1983. See Polk County v. Dodson, 454 U.S. 312, 324-25 

(1981) (holding public defender does not act under color of state law in representing a defendant 

in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988)

(“[P]rivate attorneys, even court-appointed attorneys, are not official state actors, and generally 

are not subject to suit under section 1983.”). As such, Labovitz is not subject to suit under § 

1983. 

Second, to the extent Stone seeks to compel the judge of the 396th Court to remove 

Labovitz and appoint him a new counsel, his request lacks merit. Federal courts are without 

power to issue writs of mandamus against state officers in the performance of their duties where 

mandamus is the only relief sought. See Moye v. Clerk, DeKalb County Sup. Court, 474 F.2d 

1275, 1275-76 (5th Cir. 1973) (per curiam); see also Santee v. Quinlan, 115 F.3d 355, 357 (5th 

Cir. 1997) (affirming dismissal of mandamus petition as frivolous because federal courts lack 

power to mandamus state officials in performance of their duties).

Third, insofar as Stone challenges his 2001 Dallas County conviction, his claim is not 

cognizable under § 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))). Constitutional challenges to state 

court convictions are generally cognizable only in a federal habeas corpus action after exhaustion 

of state court remedies. See 28 U.S.C. § 2254. 

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III. LEAVE TO AMEND

Generally “a pro se litigant should be offered an opportunity to amend his complaint 

before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). However, the 

Court is not required to grant leave to amend “if the plaintiff has already pleaded his ‘best case.’” 

Id. Stone’s apparent claims are fatally infirm for the reasons outlined here. Based on the most 

deferential review of his complaint, it is highly unlikely that, given the opportunity, he could 

allege cogent and viable legal claims. Under these circumstances, the Court can only conclude 

that he has already pled his best case and that granting leave to amend would be futile and cause 

needless delay. 

IV. CONCLUSION

For the foregoing reasons, this action should be summarily DISMISSED WITH 

PREJUDICE as frivolous and for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

SO RECOMMENDED on April 7, 2022.

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time 

to file objections to 14 days). 

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