IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN ART GARY §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-0202-M

§

DARREN PACE, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff John Art Gary, appearing pro se, has filed a second amended complaint against four

Dallas police officers and a third amended complaint against two Dallas County prosecutors. For

the reasons stated herein, the court will allow plaintiff to amend his pleadings, but should summarily

dismiss all claims against these new defendants.

I.

This is a pro se civil rights action brought by plaintiff, an inmate in the TDCJ-ID, arising out

of a failed robbery at a McDonald's restaurant in Dallas, Texas on October 4, 2004. In his original

complaint, plaintiff admits that he entered the restaurant, went behind the counter, and "asked" an

employee to open the cash register. (Plf. Orig. Compl. at 4, ¶ V). However, plaintiff changed his

mind and left the restaurant without any money. Three employees chased plaintiff. During the

chase, one of the employees shot plaintiff in the leg. Plaintiff was subsequently convicted of

robbery and is serving a 10-year prison sentence for that offense.

On January 27, 2005, plaintiff sued six McDonald's employees--Bruce Jones, Randon Gray

Johnson, Randon Gray, Sandra Hicks, Bruce Jones, and Darren Pace a/k/a Darren Perry--for civil

 

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 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

rights violations under 42 U.S.C. § 1983 and negligence, intentional infliction of emotional distress,

malicious prosecution, and slander under Texas law. Renee Perry, a restaurant supervisor, was later

joined as a party-defendant. According to plaintiff, these defendants conspired with the police to

use excessive force against him, to fabricate and destroy evidence, and to give false testimony at his

trial. After screening the complaint and plaintiff's answers to a Spears1 questionnaire, the magistrate

judge determined that plaintiff failed to establish that the restaurant employees were willful

participants in a "joint activity" with the police which resulted in the deprivation of a federally

protected right. Without such evidence, plaintiff could not demonstrate that the private defendants

acted "under color of state law." On March 21, 2005, the magistrate judge recommended that

plaintiff's civil rights claims be dismissed with prejudice and that the court decline to exercise

supplemental jurisdiction over his state law claims. Gary v. Pace, No. 3-05-CV-0202-M, 2005 WL

659036 (N.D. Tex. Mar. 21, 2005). That recommendation was adopted by the district judge on July

12, 2005.

On March 25, 2005, just four days after the magistrate judge issued his report and

recommendation dismissing this case, plaintiff filed a second amended complaint asserting claims

against Dallas police officers Jada Anae Brody, S.W. Griffis, Tommy Raley, and Russ Underwood.

Although the precise nature of his allegations are difficult to decipher, plaintiff generally accuses

these officers of conspiring with McDonald's employees to fabricate and destroy evidence and

failing to prosecute the employee who shot him in the leg. Upon receipt of this amended pleading,

the court sent a second Spears questionnaire to plaintiff in order to obtain more information about

his claims against these new defendants. Plaintiff answered the questionnaire on September 22,

2005. He also filed a third amended complaint accusing Dallas County prosecutors Brian Corrigan

 

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 The Prison Litigation Reform Act provides, in relevant part, that:

The court shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity.

28 U.S.C. § 1915A-(a). The statute applies to any suit by a prisoner against certain government officials or entities

regardless of whether the prisoner is proceeding in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579 (5th Cir.

1998), cert. denied, 119 S.Ct. 2405 (1999).

and Rachel Jones of failing to disclose exculpatory evidence and using perjured testimony at his

trial. The second and third amended complaints are now before the magistrate judge for initial

screening as required by 28 U.S.C. § 1915A.2

II.

The court initially observes that plaintiff has neither sought nor obtained leave to file his

second and third amended complaints. Fed. R. Civ. P. 15(a) provides, in pertinent part:

A party may amend the party's pleading once as a matter of course at

any time before a responsive pleading is served . . . Otherwise a party

may amend the party's pleading only by leave of court or by written

consent of the adverse party; and leave shall be freely given when

justice so requires.

Because plaintiff previously amended his complaint to join Renee Perry as a defendant, leave of

court is required before any further amendments are permitted. Nevertheless, the court will allow

plaintiff to file his second and third amended complaints so that his claims may be considered on

the merits.

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

 

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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,

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.

Plaintiff contends that four Dallas police officers conspired with McDonald's restaurant

employees to fabricate and destroy evidence in order to justify his arrest and secure his conviction

on felony robbery charges. In a related claim, plaintiff accuses two Dallas County prosecutors of

failing to disclose exculpatory evidence and using perjured testimony at his trial. 

In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), 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. 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). 

 

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 Plaintiff does not appear to seek an order releasing him from custody. Nor is plaintiff entitled to such relief

until he exhausts his state remedies by presenting the factual and legal basis of his claims to the Texas Court of Criminal

Appeals in a petition for discretionary review or an application for state post-conviction relief. According to plaintiff,

his robbery conviction is currently pending before an intermediate state appellate court on direct review. (See Sec.

Spears Quest. #5). Therefore, plaintiff has not satisfied the exhaustion requirement. See Davis v. Anderson, No. 4-03-

CV-0522-Y, 2003 WL 22389281 at *1-2 (N.D. Tex. Sept. 10, 2003), rec. adopted, 2003 WL 22387579 (N.D. Tex. Sept.

30, 2003).

Here, plaintiff accuses the police and prosecutors of various improprieties, including

fabricating evidence that he had a gun and pushed a restaurant employee to the floor during the

attempted robbery. (See Sec. Spears Quest. #1). Plaintiff further alleges that prosecutors used

perjured testimony at his trial and destroyed or altered a surveillance tape favorable to the defense.

(Id.). Such claims, if proved, necessarily imply the invalidity of his robbery conviction. Plaintiff

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

confinement are invalid. (See Sec. Spears Quest. #4-5). Consequently, plaintiff cannot maintain

a civil rights action against the police officers or prosecutors under 42 U.S.C. § 1983. See

Castellano v. Fragozo, 352 F.3d 939, 959-60 (5th Cir. 2003), cert. denied, 125 S.Ct. 31 (2004) (civil

rights claim based on manufactured evidence and perjured testimony does not accrue until state

court dismisses underlying criminal action); Ferguson v. City of Rowlett, Texas, No. 3-04-CV-1429-

P, 2004 WL 1857130 at *2 (N.D. Tex. Aug. 18, 2004), rec. adopted, 2004 WL 1944082 (N.D. Tex.

Aug. 31, 2004) (claim that police and prosecutor conspired to manufacture misleading videotape and

present false evidence to jury in DWI case was barred by Heck).3

B.

Nor can plaintiff sue defendants for failing to prosecute the McDonald's employee who shot

him in the leg. There is no federal constitutional to have someone criminally prosecuted or to

investigate alleged criminal wrongdoing. Althouse v. Hill, No. 3-02-CV-1263-D, 2002 WL 1750794

at *2 (N.D. Tex. Jul. 25, 2002), citing Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990); see also

 

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Riley v. St. Luke's Episcopal Hospital, 252 F.3d 749, 756 (5th Cir. 2001) (government has

"extraordinarily wide discretion" in deciding whether to prosecute).

To the extent plaintiff claims that the police and prosecutors conspired to protect the

restaurant employees from civil liability, his claim must be analyzed under the more general right

of access to the courts. See Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d

72 (1977). Such a right "is founded in the Due Process Clause and assures that no person will be

denied the opportunity to present to the judiciary allegations concerning violations of fundamental

constitutional rights." Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935

(1974). However, plaintiff has not shown how the actions of these defendants have prevented him

from seeking legal redress for his injuries. Although this court has determined that plaintiff cannot

sue the restaurant employees for federal civil rights violations and declined to exercise supplemental

jurisdiction over his state tort claims, plaintiff may reurge his tort claims in Texas state court. 

RECOMMENDATION

Plaintiff's second and third amended complaints should be summarily dismissed pursuant to

28 U.S.C. § 1915(e)(2). The court should enter a final judgment dismissing all claims against Jada

Anae Brody, S.W. Griffis, Tommy Raley, Russ Underwood, Brian Corrigan, and Rachel Jones with

prejudice.

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

 

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grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: October 6, 2005.

 

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