IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

KEVIN DEWAYNE LEE, §

(TDCJ #791487) §

 § CIVIL ACTION NO.4:05-CV-016-Y VS. 

§

 §

PARKER COUNTY §

SHERIFF’S DEPARTMENT, et al. §

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A(b)(1),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) 

 (With special instructions to the clerk of Court)

Plaintiff Kevin Dewayne Lee, a prisoner presently housed at

the Texas Department of Criminal Justice (TDCJ)--Lynaugh Unit, was

permitted by the magistrate judge to proceed herein pursuant to 28

U.S.C. § 1915, with the filing fee to be collected as required by

the Prison Litigation Reform Act (PLRA). Lee initiated this action

with the filing, on January 11, 2005, of a handwritten complaint.

At the direction of the magistrate judge, Lee completed and filed,

on February 2, 2005, a form civil-rights complaint, which the clerk

of Court is directed to designate on the docket as a “supplemental

complaint.” On April 25, 2005, Lee filed an “Affidavit,” which the

Court will construe as a “second supplemental complaint,” and the

clerk of Court is directed to so designate this pleading on the

docket. In these pleadings seeking relief under 42 U.S.C. § 1983,

Lee names as defendants the Parker County Sheriff’s Department; Jay

Brown, sheriff, Parker County, Texas, in his official capacity; Amy

Adams, district attorney, Parker County, Texas, in her official

capacity; and Parker County sheriff’s deputies David Vela and Tim

 

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Oglesby, in both their individual and official capacities. (Compl.

Style; Supp. Compl. ¶ IV(B).) In his pleadings, Lee alleges that

Parker County sheriff’s deputies attacked him on two separate

occasions between June 12, 1996, and June 13, 1996: the first

outside a police vehicle after or during his June 12 arrest on a

sexual-assault charge but before transport to jail; and the second

upon his turning himself in on June 13 after escaping from a

hospital emergency room while in the deputies’ custody. (Compl. at

2-4.) Lee also alleges that he again escaped on October 12 “after

being intentionally placed [in a recreation yard] so I would

escape.” (Compl. at 4.) Lee alleges that the defendants were

involved in a conspiracy to allow him to escape on October 12 as a

“part of a plan to oust Sheriff Ben Whiteman and to benefit them.”

(Compl. at 5.) Lee’s second supplemental complaint consists of a

rambling narrative about alleged multiple conspiracies against him,

and Lee’s fear that Parker County officials connected to his

arrest, investigation, and conviction, attempted to murder him in

October 1996 and are now trying to have either him or his family

members murdered. (Sec. Supp. Compl. at 1-3.) Lee seeks several

forms of relief, including monetary damages and a declaratory

judgment. (Compl. at 6; Supp. Compl. at § VI.)

 

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1Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2005). 

2See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2005); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

3See 28 U.S.C.A. § 1915A(a)(West Supp. 2005).

4See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

6See Denton v. Hernandez, 504 U.S. 25, 32-34 (1992); Hicks v. Garner, 69

F.3d 22, 25 (5th Cir. 1995).

3

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.2 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.4 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”5 A complaint may also be deemed frivolous

where it lacks an arguable basis in fact.6 To be factually frivolous, the pleaded facts must be clearly baseless, which encompasses

 

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7See Denton, 504 U.S. at 32; Hicks, 69 F.3d at 25.

8See Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir. 1993).

9 See Wilson v. Garcia, 471 U.S. 261, 273-76 (1985)(state statute of

limitations period for personal-injury actions applies to all claims under 42

U.S.C. § 1983).

10See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(noting that

district courts in Texas must use Texas's general two-year, personal-injury

limitations period); see TEX. CIV. PRAC. & REM. CODE 16.003(a)(Vernon 2002)

(Texas’s two-year, personal-injury limitations statute).

11See Harris v. Hegman, 198 F.3d 153, 156 (5th Cir. 1999); see also Moore,

30 F.3d at 620, citing Gartrell V. Gaylor, 981 F.2d 254, 256 (5th Cir.1993).

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factual allegations that are fanciful, fantastic and delusional.7

A finding of factual frivolousness is appropriate only in those

limited cases where the allegations rise to the level of the wholly

irrational or incredible.8 After review and consideration of Lee’s

claims in this suit, the Court finds that they must be dismissed

under the authority of 28 U.S.C. §§ 1915A and 1915(e)(2)

(B).

The Court first notes that the bulk of Plaintiff’s claims are

barred by the applicable statute of limitations. The Supreme Court

has held that all § 1983 actions are governed by the statute of

limitations for personal-injury actions for the state of suit.9 In

Texas, the applicable limitations period is two years.10 A district

court may dismiss claims sua sponte under § 1915 where it is clear

from a review of the complaint that the alleged claims are barred

by the applicable statute of limitations.11

 

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12See Harris, 198 F.3d at 157; see also Burrell v. Newsome, 883 F.2d 416,

418 (5th Cir. 1989).

13See Harris, 198 F.3d at 157, citing Jackson v. Johnson, 950 F.2d 263, 265

(5th Cir. 1992) and Burrell, 883 F.2d at 418.

14Lee v. Parker County Sheriff’s Department, No.4:97-CV-446-Y (N.D.Tex.

July 28, 2000 Order and Judgment). The Court takes judicial notice of its own

records in this prior case, discussed further infra.

15See Lee v. Cockrell, 4:99-CV-354-Y (N.D.Tex. October 4, 2001 Order and

Judgment adopting August 20, 2001, Findings, Conclusions, and Recommendation of

the United States magistrate judge). Lee pleaded guilty to the charge of felony

escape arising from the October 12, 1996, event (cause number 12371), and pleaded

guilty to a second charge of felony escape for the June 12, 1996, event (cause

number 12372). Id. (August 20, 2001 FCR at 2-4--procedural history). The Court

takes judicial notice of its own records in this prior case. 

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Accrual of a claim under § 1983 is determined by federal law,12

under which a claim generally accrues when a plaintiff knows or has

reason to know of the injury giving rise to the cause of action.13

Lee complains of events in June 1996 and October of 1996. Lee

contends, however, that because of the assistance of a TDCJ-unit

psychologist and a “new medication,” he only began remembering

certain details in September 2003. The Court doubts that a

“refreshed memory” affects claim accrual. Furthermore, Lee’s

assertion of lack of knowledge is belied by the fact that he

previously filed a suit in this Court against the same defendants

based upon some of the same alleged events,14 and he actively

challenged the escape convictions arising from the June and October

1996 events, through applications for habeas-corpus relief in both

state court and in this Court.15 The Court finds no basis to believe

that Lee did not know or have reason to know of the injuries giving

rise to his claims at the time of the 1996 events. Since Lee did

not file this suit until January 2005, his claims asserted under 42

 

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16The active pleading in Lee v. Parker County Sheriff’s Department, et al.

No.4:97-CV-446-Y, was Lee’s January 8, 1998, Second Amended Complaint (docket

no. 15). The case was terminated by the July 26, 2000, Stipulation of Dismissal

(docket no. 82), approved by an order and judgment of July 28, 2000 (docket nos.

83 and 84). 

17United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).

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U.S.C. § 1983 are too late: the applicable two-year statute of

limitations already had expired several years prior to the time Lee

filed suit. Accordingly, the complaint must be dismissed under 28

U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(b)(i) and (ii).

The Court notes an alternative basis for dismissal of Lee’s

claims arising from the June 12 and 13 events against the bulk of

the defendants is that they are barred by the doctrine of res

judicata. Lee previously raised other claims identical to some of

those asserted in this action in a prior case in this Court: Lee v.

Parker County Sheriff’s Department, et al., 4:97-CV-446-Y. There,

this Court, after appointing counsel for Lee, approved the

stipulated dismissal with prejudice of all of Lee’s claims against

the following defendants: Parker County Sheriff’s Department; Jay

Brown, Parker County sheriff, in his official capacity; and Parker

County sheriff’s deputies David Vela and Time Oglesby, in both their

individual and official capacities.16 

Res judicata, or claim preclusion, insures the finality of

judgments, conserves judicial resources and protects litigants from

multiple lawsuits.17 Four factors must be present for res judicata

to apply: (1) the parties in the later action must be identical or

in privity with the parties in the prior action; (2) the judgment

 

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18Id.,citing Eubanks v. Federal Deposit Ins.Corp., 977 F.2d 166, 169 (5th

Cir. 1992).

19Id., citing Matter of Howe, 913 F.2d 1138, 1144 (5th Cir. 1990) (emphasis

in original). 

20Matter of Howe, 913 F.2d at 1144.

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must have been rendered by a court of competent jurisdiction; (3)

the prior action must have concluded with a final judgment on the

merits; and (4) the same claim or cause of action must be involved

in both disputes.18 If these factors are present, res judicata

prohibits either party from raising claims or defenses in the later

action that were or could have been raised in support of or in

opposition to the cause of action asserted in the prior action.19

In Lee’s prior action against the same defendants he names

here, he alleged the same-excessive force claims arising from some

of the same events that occurred on June 13, 1996, within the Parker

County jail. In determining, for res judicata purposes, whether two

suits involve the same claim, the Fifth Circuit relies on the

transactional test, which looks to “whether plaintiff bases the two

actions on the same nucleus of operative facts.”20 As plaintiff Lee

raised his present claims arising from the June 13 assault at the

Parker County jail in this prior action, such claims are barred by

the doctrine of res judicata. Furthermore, any claims Lee purports

to now assert arising from that same nucleus of operative facts are

also barred by the doctrine of res judicata. Consequently, all of

Lee’s claims arising from the alleged initial excessive-force event

 

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21See generally Mowbray v. Cameron County, Texas, 274 F.3d 269, 281 (5th

Cir. 2001)(noting that although res judicata is an affirmative defense that may

not be raised sua sponte, an exception applies where both suits are brought

before the same court), cert. den’d, 535 U.S. 1055 (2002).

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on June 12, 1996, are also barred by res judicata.21

To the extent Lee’s second supplemental complaint includes

allegations that are not otherwise time-barred, and/or barred by the

doctrine or res judicata, the Court concludes that any remaining

claims must be dismissed as factually frivolous. In the pleading

construed as a second supplemental complaint, Lee contends, as

examples, that: “someone is attempting to poison my Mother;” “the

same individuals had something to do with my Grandmother’s recent

death;” [jail officials] “meant to kill me and say it was justified

by the escape but I got away by stepping into some water;” an

attorney sought to represent him just to sabotage his case; that

such attorney was “watching him at a payphone off of Fitzhugh Road

[but also] “describing him over the airway to someone else;”

officials including another Parker County sergeant “meant to murder

me but I hid in a dark alley and they lost me;” and they “didn’t

finish the job because I was then in custody and because I wasn’t

remembering things.” (Sec. Supp. Compl. at 1-2.) Lee’s repeated

focus on the irrational belief that someone is out to harm him or

his relatives is wholly delusional and fantastic. Thus, the Court

concludes that all of the recitations made the basis of Lee’s second

supplemental complaint must be dismissed as factually frivolous

under the authority of 28 U.S.C. § 1915A(b)(1) and pursuant to 28

 

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U.S.C. § 1915(e)(2)(B)(i). 

 It is therefore ORDERED that, for the alternative reasons set

forth above, all plaintiff Kevin Dewayne Lee’s claims be, and they

are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915A(b)(1) and, alternatively, pursuant to 28 U.S.C. § 1915(e)(2)

(B)(i) and (ii).

 SIGNED June 27, 2005.

 

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