IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

JAMES BELL McCOY, SR., #1299701, ) 

Plaintiff, )

)

v. ) 3:05-CV-2096-P

) ECF

HONORABLE HENRY WADE, JR., ) 

Defendant. )

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, this cause has been referred to the United States Magistrate Judge. The

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

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights action brought by a state inmate pursuant to 42

U.S.C. § 1983.

Parties: Plaintiff is presently incarcerated at the Michael Unit of the Texas Department

of Criminal Justice – Correctional Institutions Division (TDCJ-CID). Defendant is Judge Henry

Wade, Jr.

The Court did not issue process in this case, pending preliminary screening. On October

27, 2005, the Court issued a questionnaire to Plaintiff, who filed his answers on November 8,

2005. 

Statement of Case: The complaint seeks to challenge Plaintiff’s conviction for

aggravated sexual assault of a child from the 292nd Judicial District Court of Dallas County in

 

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1 “Despite the applicability of Heck v. Humphrey, 512 U.S. 477 (1994) [as set out

more fully below], a district court may appropriately consider the possible applicability of the

doctrine of absolute immunity as a threshold matter in making a section 1915(d) determination.” 

2

Cause No. F02-02115-V. (Attachment to Complaint at 1 and Answer to Question 1). 

Punishment was assessed at thirty-five years imprisonment on March 23, 2005. (Id.). Plaintiff

alleges that the crime of which he was convicted was barred from prosecution by the ten-year

statute of limitations. According to Plaintiff, Judge Wade manipulated the legal system, coerced

Plaintiff’s retained counsel to withdraw, improperly revoked Plaintiff’s bond, and violated

Plaintiff’s right to a speedy trial. Plaintiff requests monetary compensation and an order

vacating his judgment of conviction. 

Findings and Conclusions: The court has permitted Plaintiff to proceed in forma

pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes

a screening responsibility on the district court. Section 1915A provides in pertinent part that:

The court shall review . . . 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 [and] [o]n review, the court shall

identify cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.

28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).

Section 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds

that the complaint is “frivolous.” A complaint is frivolous, if it “lacks an arguable basis either in

law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Any claims for monetary damages against Judge Henry Wade, Jr., are barred by the

doctrine of absolute immunity.1 According to Plaintiff, Judge Wade misused his powers as

 

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Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995) (citing Boyd v. Biggers, 31 F.3d 279, 284 (5th

Cir.1994)); see also Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir.

1995) (even if a complaint is subject to dismissal under Heck, it remains appropriate for district

courts to resolve the question of immunity before reaching the Heck analysis).

2 The handwritten attachment to the complaint challenges at length the conduct of

Plaintiff’s court appointed counsel. Section 1983 affords redress only for conduct committed by

a person acting under color of state law. Neither appointed nor retained counsel acts under color

of state law in representing a defendant in the course of a criminal case. See Polk County v.

Dodson, 454 U.S. 312, 324, 102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981) (public defender does

not act under color of state law when performing a lawyer’s traditional functions as counsel to a

defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir.

1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381,

383 (5th Cir. 1985) (retained counsel does not act under color of state law). As such the conduct

of Plaintiff’s court appointed counsel is not cognizable in this § 1983 action. 

3

Judge in the course of his criminal prosecution when he manipulated the judicial system to deny

Plaintiff’s motion to quash the indictment, coerced Plaintiff’s retained counsel to withdraw,

revoked Plaintiff’s bond, and denied Plaintiff a speedy trial. It is self-evident that any ruling

issued by Judge Wade with respect to any of the above issues occurred in his capacity and

function as a judge, which in and of itself renders him immune from a suit for monetary

damages. Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also Brandley v. Keeshan, 64 F.3d

196, 200-201 (5th Cir. 1995). Therefore, Plaintiff’s claims against Judge Wade should be

dismissed with prejudice as frivolous and for seeking monetary relief against a defendant who is

immune from such relief. See 28 U.S.C. §§ 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).2

Even assuming Plaintiff’s claims were not barred by absolute immunity, they would

impugn the validity of his conviction for aggravated sexual assault, for which he is presently

confined within TDCJ-CID. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme

Court stated:

in order to recover damages for allegedly unconstitutional conviction or

 

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imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, [footnote omitted] a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court's issuance of a

writ of habeas corpus, 28 U.S.C. § 2254. 

The Heck Court unequivocally held that unless an authorized tribunal or executive body has

overturned or otherwise invalidated the plaintiff's confinement, his claim "is not cognizable

under [section] 1983." Id. at 487. 

The main focus of Plaintiff's allegations is that he was unlawfully indicted and convicted

for aggravated sexual assault. If proved, his claims would call into question the validity of his

conviction for aggravated sexual assault for which he is presently serving a thirty-five year

sentence in TDCJ-CID. 

In answer to the questionnaire, Plaintiff confirms that he has not satisfied the favorable

termination requirement set out in Heck. (Answer to Question 2). He concedes that his direct

criminal appeal is presently pending. (Plaintiff’s letter filed Jan. 20, 2006). Therefore, Plaintiff

is precluded from maintaining a claim under § 1983 at the present time. The District Court

should dismiss Plaintiff’s complaint, but without prejudice to Plaintiff reasserting the same when

the Heck conditions are met. See Clarke v. Stadler, 154 F.3d 186, 189 (5th Cir. 1998) (en banc)

(dismissing Heck barred claim without prejudice); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir.

1996) (noting that a § 1983 claim which falls under the rule in Heck is legally frivolous);

Williams v. Cleer,123 F. Appx. 591, *593 (5th Cir. 2005) (following Stadler and dismissing

Heck barred claims without prejudice to refiling at such time as the conviction or imprisonment

 

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3 In his letters filed on December 13, 2005, and January 20, 2006, Plaintiff requests

the Court to assist him in obtaining a complete and legible copy of his trial transcript and

appellate record. He states that the copies he received thus far are illegible and incomplete. 

Federal courts are without power to issue writs of mandamus against state officers in the

performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb

County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). A review of the January 20, 2006

letter reflects that the only relief sought is mandamus type relief against the 292nd Criminal

District Court and its employees. 

5

has been expunged, reversed or otherwise set aside).3

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s complaint be dismissed with

prejudice as frivolous and for seeking monetary relief against a defendant who is immune from

such relief. See 28 U.S.C. §§ 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii). Alternatively,

if the District Court determines that Judge Henry Wade should not be dismissed because he is

not absolutely immune, the complaint should be dismissed as frivolous but without prejudice to

Plaintiff’s refiling of the same at such time as the conditions set out in Heck are met. See 28

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

A copy of this recommendation will be mailed to Plaintiff.

Signed this 31st day of January, 2006.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

 

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conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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