1

 The Court received an unsigned complaint from plaintiff on June 3, 2005, that lists defendant Edwards and an

unidentified Assistant District Attorney as defendants. The Court received a signed amended complaint from plaintiff

on August 12, 2005. In the amended complaint, plaintiff abandoned his claims against the unidentified District Attorney

by not listing that individual as a defendant and not making an allegations against such District Attorney. Although the

current action thus proceeds only against defendant Edwards, the Court notes that the findings, conclusions, and

recommendation made herein would apply equally to the unidentified District Attorney had plaintiff pursued this action

against him or her.

2

 The Court utilizes the page numbers at the bottom of each page although the first page of the amended complaint

indicates that it is page two. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVEN W. QUICK, ID # 1243617, )

Plaintiff, )

vs. ) No. 3:05-CV-1151-L

)

JESSICA EDWARDS, et al., )

Defendants. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge.

The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Plaintiff, a prisoner currently incarcerated in the Texas prison system, brings this action

pursuant to 42 U.S.C. § 1983 against Jessica Edwards, Assistant District Attorney of Hunt County.1

(Am. Compl. at 2-3.)2 He contends that on December 8, 2003, defendant slandered him by calling

him a “child molester” during an examining trial in a state criminal action that led to his conviction

for unlawful restraint. (Id. at 3-4; Answers to Questions 1 through 3 of Magistrate Judge’s Question-

 

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3

 Plaintiff’s answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias

v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). 

4

 Plaintiff also seeks “bragging rights” and the “shield” and “badge” of the defendant. (Am. Compl. at 4.) “Bragging

rights” within the context of litigation does not constitute legal relief, but is instead a byproduct of success on the asserted

claims. A plaintiff, furthermore, may not obtain the physical shield or badge of a defendant through a § 1983 action.

In addition, to the extent plaintiff makes the request for defendant’s shield and badge figuratively as a request for the

termination of defendant, such requested relief is “is simply not available under 42 U.S.C. § 1983.” See Reyes v. Hale

County Jail, No. 5:03-CV-180-C, 2003 WL 22670929, at *3 (N.D. Tex. Sept. 16, 2003). For these reasons, the Court

proceeds as though plaintiff seeks only monetary relief in this action.

2

naire (MJQ).3

) Plaintiff seeks monetary damages in this action.4 (Am. Compl. at 4.) No process

has been issued in this case. 

II. PRELIMINARY SCREENING

 Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner

seeking redress from an employee of a governmental entity, plaintiff’s complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir.

1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is also subject to

screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal

of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to

state a claim upon which relief may be granted, or if it 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 claim lacks an arguable basis in law when it is “based on an

indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief

may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith

 

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3

v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp. 2d 768, 769 (N.D.

Tex. 2000).

III. SECTION 1983

Plaintiff seeks monetary damages under 42 U.S.C. § 1983 against an assistant district attorney for an alleged slanderous statement made during a criminal proceeding. Section 1983 “provides

a federal cause of action for the deprivation, under color of law, of a citizen’s ‘rights, privileges, or

immunities secured by the Constitution and laws’ of the United States.” Livadas v. Bradshaw, 512

U.S. 107, 132 (1994). It “afford[s] redress for violations of federal statutes, as well as of constitutional norms.” Id.

Plaintiff’s claim against defendant stems from an alleged slanderous statement made during

a state criminal proceeding. Claims of slander, defamation, and libel generally arise under state tort

law and typically lack the constitutional element required to bring suit under 42 U.S.C. § 1983. See

Paul v. Davis, 424 U.S. 693, 712 (1976). To the extent slander can support a claim under § 1983,

plaintiff must allege facts sufficient to state a claim under that statute. See Mowbray v. Cameron

County, 274 F.3d 269, 277 (5th Cir. 2001) (suggesting that a slander claim could fall under § 1983).

In this instance, plaintiff merely asserts that defendant called him a “child molester” during criminal

proceedings which culminated with his conviction for unlawful restraint. Although such a statement

undoubtedly harms one’s reputation, plaintiff does not allege how the statement otherwise harmed

him. He does not allege that the statement rendered his trial fundamentally unfair, and the alleged

facts do not support such an allegation in any event. Plaintiff has simply not alleged that the

 

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5

 To the extent plaintiff asserts a state claim of slander, such claim is also barred by the statute of limitations. Such a

claim must be brought within one year of its accrual. See Tex. Civ. Prac. & Rem. Code Ann. § 16.002. Such claim,

furthermore, “accrues on the date of the communication or publication and not on the date of the consequences or

sequelae.” Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 131 (Tex. App. – Houston [14th Dist.] 1994, no writ). In

this instance, the alleged slanderous statement occurred on December 8, 2003, approximately eighteen months before

this Court received plaintiff’s unsigned complaint on June 3, 2005. Plaintiff thus filed the instant action well after the

applicable statutes of limitations had expired. Nothing indicates that the limitations period should be tolled. Plaintiff

asserts no basis for equitable tolling. Furthermore, nothing indicates that such tolling is warranted. Consequently, a state

claim for slander is frivolous under 28 U.S.C. §§ 1915(e)(2) and 1915A for the failure of plaintiff to file it within the

statutory periods of limitations.

6

 Section1915(g), which is commonly known as the “three-strikes” provision, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding

under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in

any facility, brought an action or appeal in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless

the prisoner is under imminent danger of serious physical injury.

4

statement deprived him of a constitutional or other federal right. He thus fails to state a claim under

§ 1983. Id.

Furthermore, prosecutors enjoy absolute immunity to initiate and pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Plaintiff complains about a statement

made by an Assistant District Attorney during state criminal proceedings. Plaintiff has made no allegation that the defendant acted other than in her adjudicative role as an Assistant District Attorney.

The prosecutor thus has absolute immunity against plaintiff’s slander claim.5

 

IV. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court summarily DISMISS

this action with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for the failure of

plaintiff to state a claim upon which relief may be granted and for seeking monetary relief against a

defendant who is immune from such relief. The dismissal of this action will count as a “strike” or

“prior occasion” within the meaning 28 U.S.C. § 1915(g).6

 

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SIGNED this 2nd day of June, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. Failure to file written

objections to the proposed findings, conclusions, and recommendation within ten days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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