1

 Plaintiff was transferred to the Byrd Unit of the TDCJ-ID before this suit was filed.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALAN DOUGLAS MEYER §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-0615-K

§ 

DR. MILLER, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil rights action brought by Plaintiff Alan Douglas Meyer, a former inmate

in the Dallas County Jail,1 against various state, county, and city officials. On March 28, 2005,

plaintiff tendered a complaint to the district clerk and filed an application to proceed in forma

pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he

lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis

and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to

obtain additional information about the factual basis of his suit. Plaintiff answered the

interrogatories on May 9, 2005. The court now determines that this action should be summarily

dismissed pursuant to 28 U.S.C. § 1915(e)(2). 

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 1 of 9 PageID 50
II.

Plaintiff presents a litany of complaints relating to his arrest, pretrial detention, and

conviction for stalking, a third-degree felony under Texas law. According to plaintiff, Dallas police

officers arrested him without a warrant or probable cause and used excessive force to effect the

arrest. Plaintiff further alleges that his subsequent conviction was based on the testimony of a

"psychologically disabled" woman and not supported by sufficient evidence. Shortly after his arrest,

plaintiff was attacked by another inmate in the Dallas County Jail. He blames jail officials for

failing to protect him from this assault. Plaintiff also accuses the jail medical staff of failing to

provide adequate treatment for injuries sustained in the attack and an unrelated vision problem. By

this suit, plaintiff seeks unspecified monetary damages and injunctive relief.

III.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 2 of 9 PageID 51
113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

A.

The court initially observes that plaintiff has failed to state a claim for relief against many

of the defendants named in his complaint. The Dallas County Jail, the Dallas County Sheriff's

Department, and the Dallas Police Department are not legal entities subject to suit. See Johnson v.

Dallas City Police Dep't., 2004 WL 2964968 at *2 (N.D. Tex. Dec. 15, 2004) (Sanderson, J.), rec.

adopted, 2005 WL 119467 (N.D. Tex. Jan. 15, 2005) (Boyle, J.) (Dallas police department not a

proper defendant with jural existence); Lindley v. Bowles, 2002 WL 1315466 at *2 (N.D. Tex. Jun.

12, 2002) (Solis, J.) (same as to Dallas County Jail); Magnett v. Dallas Co. Sheriff's Dep't., 1998 WL

51355 at *1 (N.D. Tex. Jan. 20, 1998) (Kaplan, J.) (same as to Dallas County Sheriff's Department).

The University of Texas Medical Branch is a state agency that cannot be sued in federal court absent

a waiver of Eleventh Amendment immunity. O'Rourke v. United States, 298 F.Supp.2d 531, 535

(E.D. Tex. 2004) 

Nor can plaintiff sue Mayor Laura Miller, Police Chief David Kunkle, Sheriff Lupe Valdez,

or Dr. Miller for the actions of their employees. As supervisors and elected officials, these

defendants are liable only if: (1) they affirmatively participated in acts that caused a constitutional

deprivation; or (2) implemented unconstitutional policies that resulted in injury to plaintiff. Mouille

v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993).

It is clear from plaintiff's interrogatory answers that none of these defendants were personally

involved in the alleged constitutional deprivations made the basis of this suit. Instead, plaintiff

maintains that defendants are responsible for the actions of their subordinates. (See Interrog. #10-

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 3 of 9 PageID 52
13). Such allegations are insufficient to state a claim against Mayor Miller, Chief Kunkle, Sheriff

Valdez, and Dr. Miller in their individual capacities. See Jett v. Dallas Independent School Dist.,

491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Morgan v. Dallas Co. Sheriff's

Dep't., 2005 WL 57282 at *2 (N.D. Tex. Jan. 11, 2005) (Kaplan, J.).

B.

Plaintiff first complains that he was arrested without a warrant or probable cause. In a

related argument, plaintiff contests his conviction and resulting 10-year sentence for stalking. Both

claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129

L.Ed.2d 383 (1994). 

In Heck, the Supreme Court held that a party may not maintain a civil rights action based on

the legality of a prior criminal proceeding unless a state court or federal habeas court has determined

that the terms of confinement are in fact invalid. Heck, 114 S.Ct. at 2372. The critical inquiry is

whether a judgment in favor of the plaintiff in the civil action would "necessarily imply the

invalidity of his conviction or sentence." Id., 114 S.Ct. at 2372. If so, the claim is barred unless the

conviction has been reversed or declared invalid. Id.; Hainze v. Richards, 207 F.3d 795, 798 (5th

Cir.), cert. denied, 121 S.Ct. 384 (2000). A false arrest claim implicates a criminal prosecution

where the conviction is based on evidence discovered during the arrest. See Hudson v. Hughes, 98

F.3d 868, 872 (5th Cir. 1996); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995). 

Although his pleadings are less than a model of clarity, plaintiff appears to challenge the

sufficiency of the evidence giving rise to his arrest and subsequent conviction for stalking. Under

Texas law:

A person commits an offense if the person, on more than one

occasion and pursuant to the same scheme or course of conduct that

is directed specifically at another person, knowingly engages in

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 4 of 9 PageID 53
 2

 To the extent plaintiff seeks an order releasing him from custody, his complaint must be construed as an

application for writ of habeas corpus under 28 U.S.C. § 2254. Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983);

Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979). However, it does not appear that plaintiff has exhausted his state

remedies by presenting the factual and legal basis of his claim to the Texas Court of Criminal Appeals in a petition for

discretionary review or an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal

Procedure. (See Interrog. #5). Unless and until plaintiff exhausts his available state remedies, he may not seek federal

habeas relief. See Davis v. Anderson, 2003 WL 22389281 at *1-2 (N.D. Tex. Sept. 10, 2003) (Bleil, J.), rec. adopted,

conduct, including following the other person, that:

(1) the actor knows or reasonably believes the other person will

regard as threatening:

* * * *

(2) causes the other person or a member of the person's family or

household to be placed in fear of bodily injury or death or fear that an

offense will be committed against the other person's property; and

(3) would cause a reasonable person to fear:

(A) bodily injury or death for himself or herself;

(B) bodily injury or death for a member of the person's

family or household; or

(C) that an offense will be committed against the person's

property.

TEX. PENAL CODE ANN. § 42.072(a) (Vernon 2003). Here, plaintiff argues that his presence at the

complainant's house was an isolated incident and not part of "scheme or course of conduct." (See

Interrog. #3). As a result, plaintiff maintains he should not have been arrested or convicted of

stalking. Such an argument, if proved, necessarily implies the invalidity of his conviction. Plaintiff

further acknowledges that no state court or federal habeas court has ever determined that the terms

of his confinement are invalid. (Interrog. #4-5). Consequently, he cannot maintain a civil rights

action under 42 U.S.C. § 1983. See Ferguson v. City of Rowlett, Tex., 2004 WL 1857130 at *2

(N.D. Tex. Aug. 18, 2004) (Kaplan, J.), rec. adopted, 2004 WL 1944082 (N.D. Tex. Aug. 31, 2004)

(Solis, J.).2

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 5 of 9 PageID 54
2003 WL 22387579 (N.D. Tex. Sept. 30, 2003) (Means, J.) (citing cases).

C.

Plaintiff also accuses Dallas Police Officer McGuire of using excessive force to effect his

arrest. Such a claim must be analyzed under the "reasonableness" standard of the Fourth

Amendment to United States Constitution. See Graham v. Conner, 490 U.S. 386, 394-95, 109 S.Ct.

1865, 1871, 104 L.Ed.2d 443 (1989). In order to establish a constitutional violation, plaintiff must

show that: (1) he suffered a significant injury; (2) resulting directly and only from the use of force

that was clearly excessive to the need for force; and (3) the force used was objectively unreasonable.

See Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000). The court must view the

totality of the circumstances from the standpoint of a reasonable officer on the scene, paying

particular attention to "whether the suspect pose[d] an immediate threat to the safety of the officers

and others." Stroik v. Ponseti, 35 F.3d 155 157-58 (5th Cir. 1994), cert. denied, 115 S.Ct. 1692

(1995).

Plaintiff alleges that Officer McGuire was "excessively violent" towards him, causing

bruising and bleeding and nearly breaking his jaw. (See Interrog. #13). This is sufficient to show

significant injury at the pleading stage. However, plaintiff fails to allege any facts in his complaint

or interrogatory answers which suggest that the use of force was clearly excessive to the need for

force or objectively unreasonable under the circumstances. To the contrary, plaintiff admits that

Officer McGuire was told that the stalking suspect was "armed and dangerous." (Interrog. #2).

Although plaintiff disputes the accuracy of that information, the court must view the totality of the

circumstances from the standpoint of a reasonable officer on the scene. Clearly, some force may

be necessary to apprehend a suspect who may be armed. Plaintiff's conclusory assertion that Officer

McGuire was "excessively violent," without more, is insufficient to his support a claim of excessive

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 6 of 9 PageID 55
 3

 Because plaintiff cannot maintain an excessive force claim against Officer McGuire, the court need not decide

whether any official policy or custom of the City of Dallas was a "moving force" behind this alleged constitutional

violation.

force. See Powell v. Starr, 2003 WL 23095976 at *4 (N.D. Tex. Dec. 22, 2003) (Stickney, J.), rec.

adopted, 2004 WL 213501 (N.D. Tex. Jan. 29, 2004) (Fitzwater, J.) (allegation of "brutal

misconduct" on part of arresting officer insufficient to prove excessive force).3

D.

Two weeks after his arrest, plaintiff was attacked by another inmate in the Dallas County

Jail. As a result of that incident, plaintiff sustained a broken jaw, bruises to his face and head, and

nerve damage. Plaintiff blames jail officials for failing to prevent the assault and for failing to

provide adequate medical treatment for his injuries.

Both claims are governed by the "deliberate indifference" standard of the Eighth Amendment

to the United States Constitution. U.S. CONST. amend. VIII; Hare v. City of Corinth, 74 F.3d 633,

649 (5th Cir. 1996). "Deliberate indifference" requires proof that jail officials were aware of a

substantial risk of serious harm and failed to take reasonable measures to abate that risk. Id. at 649,

citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L. Ed 2d 811 (1994). With

respect to his failure to protect claim, plaintiff has failed to show that defendants were "'aware of

facts from which the inference could be drawn that a substantial risk of harm exist[ed]' prior to the

assault." Cotton v. Ryan, 119 Fed.Appx. 643, 2005 WL 27604 at *1 (5th Cir. Jan. 6, 2005), quoting

Farmer, 114 S.Ct. at 1979. Consequently, this claim fails as a matter of law.

Nor has plaintiff alleged sufficient facts to show that defendants were deliberately indifferent

to his medical needs. Plaintiff admits that he received medical treatment immediately following the

assault. Although he believes that his broken jaw would have healed faster had his mouth been

wired shut, there is no indication that such treatment was medically necessary. (See Interrog. #1).

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 7 of 9 PageID 56
Plaintiff's medical care claim is nothing more than a disagreement over the course of treatment

which is not actionable under 42 U.S.C. § 1983. See Kelly v. Alford, 2003 WL 22456810 at *2

(N.D. Tex. Oct. 23, 2003) (Kaplan, J.), citing Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993).

E.

Finally, plaintiff complains that jail officials failed to provide him with prescription

eyeglasses and eye drops for an unspecified condition. While poor vision may, under certain

circumstances, constitute a serious medical need, plaintiff has failed to allege any risks attendant to

his vision problems. See Swaissi v. Cotten, 2002 WL 492905 at *2 (N.D. Tex. Mar. 28, 2002)

(Kaplan, J.) (difficulty reading, writing, and watching television with uncorrected vision does not

rise to level of constitutional violation). Cf. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996)

(allegation that deprivation of eyeglasses caused plaintiff to fall and walk into objects sufficient to

state medical care claim under section 1983); Benter v. Peck, 825 F.Supp. 1411, 1416-17 (S.D. Iowa

1993) (legally blind inmate, who required glasses to work or function in general prison population,

had serious medical need). Nor has plaintiff identified the defendants responsible for this alleged

constitutional deprivation. (See Interrog. #9). The court therefore concludes that this claim should

be summarily dismissed.

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 8 of 9 PageID 57
grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: June 2, 2005.

 

 Case 3:05-cv-00615-K Document 10 Filed 06/02/05 Page 9 of 9 PageID 58