1 Plaintiff submitted the complaint on the form for filing a civil rights action

pursuant to 42 U.S.C. § 1983. Since he is seeking to sue federal agents and jurors, the Court

liberally construes the complaint as one brought at least in part pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).

Plaintiff’s co-defendants, Marco Antonio Zapata-Rodriguez, Jr., and Marco Antonio

Zapata, III, recently filed two complaints identical to the one at issue in this case. See Marco

Antonio Zapata-Rodriguez, Jr. v. Elsey, et al., 3:06cv0021 (N.D. Tex., Dallas Div., filed on

January 4, 2006) ( referred to Mag. J. Stickney); Marco Antonio Zapata, III v. Elsey, et al.,

3:06cv0435 (N.D. Tex., Dallas Div., filed on March 10, 2006) (referred to Mag. J. Sanderson).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

JOSE I. ZAPATA, #24881-077, ) 

Plaintiff, )

)

v. ) 3:05-CV-2492-N

) ECF

MICHAEL ELSEY, 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, 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 federal inmate proceeding pro

se.

1

Parties: Plaintiff is presently confined at FCI Three Rivers in Three Rivers, Texas. 

Defendants are FBI Agents Michael Elsey and Keith Bishop, and Jurors Tracy Hadfield and

Karen Bolton. The Court did not issue process in this case pending preliminary screening.

Statement of Case: The complaint seeks to sue two FBI agents and two jurors for

 

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personal relationships that developed among them after Plaintiff’s trial but before his sentencing

in United States v. Jose Inez Zapata, 3:93cr285-R(09) (N.D. Tex., Dallas Div.). The complaint

also seeks to sue Agents Bishop and Elsey for perjured testimony presented at trial and

sentencing respectively. Plaintiff alleges the above conduct deprived him of a fair and impartial

trial and that the two FBI agents should be held accountable for their perjured testimony He

requests that “the Defendants appear in open court and answer to the charges and allow the

Plaintiff to be considered for a non-life term of imprisonment.” (Complaint at 4). 

Findings and Conclusions: Before addressing Plaintiff’s claims, the Court must first

examine the threshold question of whether it has subject matter jurisdiction. That is an issue of

paramount concern, and should be addressed, sua sponte if necessary, at the inception of any

federal action. System Pipe & Supply, Inc. v. M/V Viktor Kurnatovsky, 242 F.3d 322, 324 (5th

Cir. 2001); Moody v. Empire Life Ins. Co., 849 F.2d 902, 904 (5th Cir. 1988). 

Unless otherwise provided by statute, federal court jurisdiction requires (1) a federal

question arising under the Constitution, a federal law or a treaty, see 28 U.S.C. § 1331, or (2)

complete diversity of citizenship between adverse parties and at least $75,000 in controversy, see

28 U.S.C. § 1332.

Plaintiff seeks to have the Court investigate alleged criminal activities engaged in by the

Defendants and to ensure that they are criminally prosecuted. Investigations in possible criminal

activities and the prosecution of federal criminal offenses fall within the exclusive jurisdiction of

the executive branch of the federal government. See Pierre v. Guidry, 75 F. Appx. 300, 300 (5th

Cir. 2003) (per curiam) (citing Cort v. Ash, 422 U.S. 66, 79 (1975)) (plaintiff has no right to

bring a private action under federal criminal statutes); Oliver v. Collins, 904 F.2d 278, 280-81

 

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3

(5th Cir. 1990) (the decision to file or not to file criminal charges falls within this category of

acts that will not give rise to § 1983 liability). 

Plaintiff also requests a reduction in his sentence. Such a request is not cognizable in this

civil action. 

Although it is not clear from the complaint whether Plaintiff is seeking monetary relief

for alleged civil rights violations by the two jurors during his criminal case, this claim would

also be subject to dismissal for want of jurisdiction. Plaintiff has alleged no facts giving rise to a

federal claim against the two jurors. In order to state a civil rights claim cognizable under §

1983 or Bivens, Plaintiff must allege that (1) he was deprived of a right secured by the

Constitution or laws of the United States; and (2) the deprivation was caused by one acting under

color of state or federal law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988) (for

elements of § 1983 action); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) (noting that

“[a] Bivens action is analogous to an action under § 1983-the only difference being that § 1983

applies to constitutional violations by state, rather than federal, officials”). Absent either

element, a claim is not cognizable under either § 1983 or Bivens. 

Here, Plaintiff’s claim against the two jurors is not cognizable under § 1983 or Bivens

because the jurors did not act under color of either state or federal law. As noted in response to

Plaintiff’s motion for new trial and on direct appeal, the personal relationships between the FBI

agents and the jurors developed after Plaintiff’s criminal trial. United States v. Zapata, No. 94-

10410, slip op. at 1 (5th Cir. 1996) (noting that the relationships between the FBI agents and

jurors in question occurred post-verdict). Nor has Plaintiff alleged anything which can be

construed as a deprivation of a right secured by the Constitution or laws of the United States. 

 

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2 Assuming arguendo that the jurors acted under color of law and that their conduct

allegedly violated the U.S. Constitution, absolute immunity would shield them from liability. 

See 28 U.S.C. § 1915A(b)(2), discussed infra. Absolute immunity has been extended to private

parties such as witnesses and jurors based on the function they served and the rationales

underlying the grant of immunity. Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108 (1983);

Imbler v. Pachtman, 424 U.S. 409, 423 n. 20, 96 S.Ct. 984, 991 n. 20 (1976); See also Butz v.

Economou, 438 U.S. 478, 509- 510, 98 S.Ct. 2894, 2912 (1978); Mays v. Sudderth, 97 F.3d 107,

112 (5th Cir. 1996); DeCamp v. Douglas County Franklin Grand Jury, 978 F.2d 1047 (8th Cir.

1992); Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991).

3 Plaintiff paid the $250.00 filing fee contemporaneously with the filing of the

complaint in this case.

28 U.S.C. § 1915A reads in relevant part as follows:

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).

4

Moreover, Plaintiff’s claim against the two jurors cannot otherwise be construed to raise a

federal question. See 28 U.S.C. § 1331. Diversity of citizenship jurisdiction does not appear to

exist because the Plaintiff and the two jurors are citizens of Texas. See 28 U.S.C. § 1332. 

Therefore, the District Court should dismiss Plaintiff’s complaint for monetary relief against the

two jurors for lack of jurisdiction.2 

Any claim for monetary relief against the FBI agents, should be dismissed under 28

U.S.C. § 1915A(b)(2) because Plaintiff is seeking relief from defendants who are absolutely

immune from such relief. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (the statutory

screening provision under § 1915A applies to all prisoners’ actions against governmental

entities, their officers and employees, regardless of whether the prisoner is proceeding in forma

pauperis).3 In Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1983), the Supreme Court held

 

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that all witnesses--police officers as well as lay witnesses--are absolutely immune from civil

liability under § 1983, including those who give allegedly perjured testimony during adversarial

criminal proceedings. Id. at 334, 103 S.Ct. at 111. See also Moore v. McDonald, 30 F.3d 616

(5th Cir. 1994) (deputy sheriff’s testimony in adversarial pretrial suppression hearing was

absolutely immune from arrestee’s § 1983 claim).

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s claims seeking a criminal

investigation and a reduction of his sentence should be dismissed for lack of jurisdiction. 

It is further recommended that to the extent Plaintiff requests monetary relief, that the

claim against the two jurors should be dismissed for lack of jurisdiction, and that the claim

against the FBI agents should be dismissed because Plaintiff is seeking relief against Defendants

who are absolutely immune from such relief. 28 U.S.C. § 1915A(b)(2).

A copy of this recommendation will be mailed to Plaintiff.

Signed this 21st day of March, 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

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

 

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conclusions of law accepted by the district court.

 

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No need to reach Heck claim. Any claim challenging conviction would be a § 2255 motion to

vacate.

 

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