Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PETER DAVID WINEGARNER, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1157-L

§

CITY OF COPPELL, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is a pro se civil rights action brought by Plaintiff Peter David Winegarner (“Plaintiff”)

pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint stems from criminal proceedings initiated

against him by the Dallas County District Attorney’s Office in or around June 2004 related to a

domestic violence dispute involving his wife, Pamela Winegarner, and culminating in his conviction

in Dallas County Criminal Court No. 11 in Dallas County, Texas, Trial Court Cause No. MA-03-

19135-N. In a nutshell, he complains that his constitutionally protected rights were violated when

Defendants subjected him to unlawful seizure, malicious abuse of process, malicious prosecution,

harassment and intimidation, denial of his right of access to the courts, and denial of due process.

He alleges that, among other things, the District Attorney’s Office brought criminal charges against

him even though he notified them that he objected to the charges, that City of Coppell Police Chief

Roy Osborn failed to notify the District Attorney’s Office of Plaintiff’s objections to the criminal

charges, that numerous witnesses lied about several events and circumstances concerning Plaintiff’s

alleged assault on his wife, that prosecutors Kendall Castello (“Castello”) and Kimberly Miller

(“Miller”) helped the District Attorney’s Office pursue criminal charges against him even though

 

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they knew he was innocent, and that while typing the trial transcript, the court reporter during his

criminal trial, Vielica Dobbins (“Dobbins”), inserted words into Plaintiff’s testimony. In addition

to his § 1983 claims, Plaintiff also alleges state law claims for defamation.

I. Plaintiff’s § 1983 Claims Against the Dallas County Defendants

Pursuant to a Standing Order of Reference, issued September 8, 2005, this case was referred

to United States Magistrate Judge Paul D. Stickney for pretrial management. On January 4, 2006,

Defendants Castello, Miller, Dobbins, the Dallas County District Attorney’s Office and Dallas

County Criminal Court No. 11 (collectively referred to as the “Dallas County Defendants”) filed a

Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (the “Dallas County Defendants’ Motion to

Dismiss”). On March 9, 2006, United States Magistrate Judge Paul D. Stickney issued the

Conclusions and Recommendation of the United States Magistrate Judge (hereinafter, the “First

Report”), recommending that the Dallas County Defendants’ Motion to Dismiss, filed January 4,

2006, be granted. Specifically, the magistrate judge recommended that Plaintiff’s claims against

Defendant District Attorney’s Office and Defendant Criminal Court No. 11 be dismissed since these

Defendants were not separate jural entities, and thus not subject to suit. See First Report at 4-5 (and

cases cited therein). As to the remaining Dallas County Defendants, namely Castello, Miller and

Dobbins (sued in both their individual and official capacities), the magistrate judge found that

Plaintiff’s claims were barred by the doctrine enunciated in Heck v. Humphrey, 512 U.S. 777 (1994),

since the “alleged facts underlying Plaintiff’s claims all involve the criminal trial that ultimately led

to Plaintiff’s conviction” and that conviction has not been reversed on direct appeal or expunged or

declared invalid. See First Report at 6. Accordingly, pursuant to Heck, the magistrate judge

recommended that the claims against Castello, Miller and Dobbins be dismissed. 

 

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In his objections to the First Report, Plaintiff attached a March 22, 2006 Judgment of the

Court of Appeals for the Fifth District of Dallas, reversing his criminal conviction in Tr. Ct. No.

MA-03-19135-N and remanding the cause for a new trial. Plaintiff contended that in light of this

Judgment, dismissal under Heck as to Castello, Miller and Dobbins was no longer appropriate. After

considering the magistrate judge’s First Report and the objections, in its Memorandum Opinion and

Order, issued on April 28, 2006, the court determined that, in light of the intervening reversal of

Plaintiff’s criminal conviction, the magistrate judge’s findings were correct except insofar as he

recommended that Plaintiff’s claims against Castello, Miller and Dobbins were barred by Heck. The

court recommitted this matter to the magistrate judge for further consideration in light of the

intervening Judgment of the Court of Appeals for the Fifth District of Dallas reversing Plaintiff’s

criminal conviction.

Thereafter, Castello, Miller and Dobbins filed a brief on May 8, 2006, reasserting the

arguments presented in their original motion to dismiss, namely, that Plaintiff’s § 1983 claims

against them should be dismissed since: Castello and Miller were entitled to absolute prosecutorial

immunity; Dobbins was entitled to qualified immunity; Castello, Miller and Dobbins were not

government policymakers and could therefore not be sued in their official capacities; and

insufficiency of process and service of process. Castello, Miller and Dobbins also argued that

Plaintiff’s pendent state law claims against them should be dismissed for lack of an independent

jurisdictional basis to support Plaintiff’s federal claims against them. 

On June 2, 2006, the magistrate judge issued his Conclusions and Recommendation of the

United States Magistrate Judge (hereinafter, the “Second Report”), recommending that the court

grant in part and deny in part the motion to dismiss. Specifically, the magistrate judge

 

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recommended that the court grant the motion to dismiss insofar as Plaintiff’s claims against Castello,

Miller and Dobbins. With regard to Castello and Miller, the magistrate judge found that

prosecutorial immunity barred Plaintiff’s § 1983 claims. See Second Report at 5-7. With regard

to Dobbins, the magistrate judge found that she was entitled to qualified immunity, as Plaintiff failed

to establish that he was deprived of a constitutional right. See id. at 7-9. The magistrate judge also

concluded that Plaintiff could not sue Castello, Miller or Dobbins in their respective official

capacities, as they were not governmental policymakers. See id. at 7, 9. With regard to Plaintiff’s

state law defamation claims, however, the magistrate judge recommended that the court deny the

motion to dismiss reasoning that, “[a]t this preliminary stage of this lawsuit, the Court finds that

since Plaintiff has remaining federal claims, the District Court should deny the Dallas County

Defendant’s motion to dismiss Plaintiff’s state law claims.” See Second Report at 11 (and cases

cited therein). 

On June 20, 2006, Plaintiff filed objections to the Second Report, disagreeing with the

magistrate judge’s findings that Castello and Miller are entitled to prosecutorial immunity and that

Dobbins is entitled to qualified immunity. Plaintiff’s objections fail to address well-established law

pertaining to prosecutorial immunity and qualified immunity, set forth by the magistrate judge. See

Second Report at 5-9 (and cases cited therein). Specifically, with regard to prosecutorial immunity,

Plaintiff’s objections ignore that a prosecutor is entitled to prosecutorial immunity from claims

arising from conduct that occurred when the prosecutor was “serving as an advocate in judicial

proceedings.” Kalina v. Fletcher, 522 U.S. 118, 125 (1997); see also Imbler v. Pachtman, 424 U.S.

409, 410 (1976). Plaintiff’s objections also fail to address that the United States Court of Appeals

for the Fifth Circuit has bestowed prosecutorial immunity on prosecutors even when they are

 

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accused of intentional misconduct, or where it is alleged that they knowingly used perjured

testimony. See Second Report at 6 (and cases cited therein). Thus, even assuming Plaintiff’s

allegations were true, Castello and Miller would still be entitled to prosecutorial immunity.

Moreover, Plaintiff’s objections fail to dispute the magistrate judge’s finding that he failed to allege

facts that, if taken as true, would demonstrate that Castello and Miller were policymakers, and thus

subject to suit in their official capacities. See Second Report at 6 (and cases cited therein). Further,

with regard to the magistrate judge’s finding that Plaintiff had failed to establish that he was

deprived of a constitutional right by court reporter Dobbins, Plaintiff’s objections do not address

how Defendant Dobbins’s alleged insertion of words into the trial transcript rises to the level of a

violation of a clearly established constitutional right. In short, his objections fail in any way to call

into question the magistrate judge’s conclusion that Plaintiff had not demonstrated that Dobbins

“denied him a meaningful opportunity to be heard because he has not illustrated how her alleged

insertion of the words into the trial transcript impugned the fairness of his trial.” See Second Report

at 9. Finally, Plaintiff’s objections fail to dispute that Dobbins cannot be sued in her official

capacity, as she is not a governmental policymaker. See Second Report at 9. For these reasons , the

court overrules Plaintiff’s objections to the magistrate judge’s findings and conclusions that

Plaintiff’s § 1983 claims against Castello, Miller and Dobbins should be dismissed.

II. Plaintiff’s Pendent State Law Claims

With regard to Plaintiff’s state law claims, the magistrate judge recommended that the court

deny the motion to dismiss reasoning, “[a]t this preliminary stage of this lawsuit, the Court finds that

since Plaintiff has remaining federal claims, the District Court should deny the Dallas County

Defendant’s motion to dismiss Plaintiff’s state law claims.” See Second Report at 11 (and cases

 

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cited therein). Defendants did not file any objections to the Second Report. Having reviewed the

pleadings, file and record in this case, and the findings and conclusions of the magistrate judge in

his Second Report, the court determines that the magistrate judge’s finding and conclusion regarding

the state law claims is correct, and it is hereby accepted as that of the court.

III. Conclusion

Having reviewed the pleadings, file and record in this case, the findings and conclusions of

the magistrate judge in his Second Report, and Plaintiff’s objections, the court overrules Plaintiff’s

objections and determines that the findings and conclusions are correct in recommending dismissal

of Plaintiff’s § 1983 claims against the remaining Dallas County Defendants in this case, namely

Castello, Miller and Dobbins, and further in recommending that Defendants’ motion to dismiss

Plaintiff’s pendent state law claims be denied at this time. Accordingly, the magistrate judge’s

findings and conclusions are accepted as those of the court. The court grants in part and denies

in part Defendants’ Motion to Dismiss. The court grants Dallas County Defendants’ Motion to

Dismiss Plaintiff’s § 1983 claims against Defendants Kendall Castello, Kimberly Miller and Vielica

Dobbins, and hereby dismisses with prejudice Plaintiff’s § 1983 claim against these Defendants.

The court denies without prejudice the Dallas County Defendants’ Motion to Dismiss as it pertains

to Plaintiff’s state law claims against Defendants Kendall Castello, Kimberly Miller and Vielica

Dobbins. In the event all federal claims are dismissed in this lawsuit, Castello, Miller and Dobbins

will be permitted to once again seek dismissal of Plaintiff’s pendent state law claims.

It is so ordered this 28th day of August, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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