1

 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. 

2

 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). 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARVIN DANIEL COOKS, ID # 490807, )

Plaintiff, )

vs. ) No. 3:05-CV-1286-D

)

BILL HILL, 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 Bill Hill, District Attorney of Dallas County; J.R. Cook, plaintiff’s

former defense attorney; and Judge Henry M. Wade, Jr. (Compl. at 2-3.)1 In his complaint and

answers to a Magistrate Judge’s Questionnaire (MJQ),2 plaintiff contends that defendant Hill denied

him due process by filing an illegal indictment against him to enhance his sentence beyond the

maximum punishment range of two years. (Id. at 3-4; MJQ at 1.) He contends that defendant Cook

denied him due process by allowing his conviction and rendering ineffective assistance during his

criminal proceedings. (Compl. at 3-4; MJQ at 2.) Finally, plaintiff contends that defendant Wade

 

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imposed an illegal sentence. (Compl. at 3-4; MJQ at 3.) Plaintiff seeks monetary damages in this

action. (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

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 a district attorney, his

former defense attorney, and a state judge for acts and omissions made during his state criminal pro-

 

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ceedings. 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.

A. Heck Bar

In this case, the crux of plaintiff’s complaint is that he was unlawfully sentenced due to an

invalid indictment and ineffective assistance of counsel. Under Heck v. Humphrey, 512 U.S. 477

(1994), when a successful civil rights action would necessarily imply the invalidity of a plaintiff’s

conviction or sentence, the complaint must be dismissed, unless plaintiff demonstrates 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 a determination, or called into question by a

federal court’s issuance of a writ of habeas corpus under 28 U.S.C. § 2254. 512 U.S. at 486-87. 

Were the Court to grant monetary relief on plaintiff’s claims, such ruling would necessarily

implicate the validity of his sentence. Consequently, Heck requires plaintiff to demonstrate that his

sentence has been reversed, invalidated, or expunged prior to bringing an action under 42 U.S.C.

§ 1983. From the documents filed in this case, it appears that plaintiff remains incarcerated pursuant

to the sentence imposed in the criminal action that forms the crux of this case. Nothing in his

complaint or the answers to the Magistrate Judge’s Questionnaire, furthermore, indicates that his

conviction has been successfully overturned, reversed on appeal, expunged by executive order,

declared invalid by a state tribunal, or called into question by a federal court in a habeas proceeding.

Until plaintiff receives a ruling declaring his sentence invalid, no action will accrue under § 1983 for

 

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claims that, if successful, would necessarily implicate the validity of that sentence. Heck, 512 U.S.

at 486-87. Because Heck bars plaintiff’s claims, his § 1983 complaint has no basis in law and should

be dismissed as frivolous. Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (holding that “[a]

§1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence

at issue has been reversed, expunged, invalidated, or otherwise called into question”). 

Nevertheless, although Heck provides a means to dismiss this § 1983 action in its entirety,

the Court need not rely upon Heck when the case before it presents issues that are appropriate for

early and final determination. For instance, when an action raises an issue of immunity, the Court

to the extent it is feasible to do so should determine that issue as early in the proceedings as possible.

See Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 462 n.6 (5th Cir. 1998); Hulsey v. Owens, 63

F.3d 354, 356 (5th Cir. 1995); Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). In addition,

“[w]hen a plaintiff seeks relief unavailable under 42 U.S.C. § 1983 or sues individuals or entities who

are not proper parties under § 1983, it also seems appropriate to have an early determination of those

issues.” Smithback v. Cockrell, No. 3:01-CV-1658-M, 2002 WL 1268031, at *2 (N.D. Tex. June 3,

2002) (accepting findings and recommendation of United States magistrate judge). 

B. Judicial Immunity

Plaintiff seeks monetary damages from a state judge for his part in sentencing plaintiff.

However, the United States Supreme Court has recognized absolute immunity for judges acting in

the performance of their judicial duties. See Nixon v. Fitzgerald, 457 U.S. 731, 745-46 (1982). Judges

are immune from suit for damages resulting from any judicial act unless performed in “the clear

absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S.

 

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349, 356-357 (1978); Young v. Biggers, 938 F.2d 565, 569 n.5 (5th Cir. 1991). Furthermore, allegations of bad faith or malice do not overcome judicial immunity. Mireles, 502 U.S. at 11. 

Plaintiff makes no allegation that Judge Wade acted outside the scope of his judicial duties.

He makes no allegation suggesting that the judge acted without jurisdiction. Consequently, Judge

Wade is absolutely immune to the claims asserted against him, and the Court should dismiss the

claims. 

C. Prosecutorial Immunity

Plaintiff also seeks monetary damages from the Dallas District Attorney for acts related to

plaintiff’s prosecution and sentencing. Prosecutors, however, enjoy absolute immunity to initiate and

pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Plaintiff has

made no allegation that defendant Hill acted other than in his adjudicative role as prosecutor. Consequently, defendant Hill is absolutely immune to the claims asserted against him, and the Court

should dismiss such claims. 

D. Defense Attorney as a Proper Party

Plaintiff further alleges that his former defense attorney rendered ineffective assistance and

thus caused him to be sentenced for a period of incarceration in excess of the statutory maximum

sentence. It is well established, however, that neither appointed nor retained counsel acts under

color of state law in representing a defendant at trial or on direct appeal. See Polk County v. Dodson,

454 U.S. 312, 325 (1981) (holding that “a 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 proceeding); Mills

v. Criminal Dist. Ct. No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (holding that “private attorneys, even

 

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court-appointed attorneys, are not official state actors, and generally are not subject to suit under

section 1983”); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (holding that retained attorney

does not act under color of state law). Nevertheless, in certain circumstances, private parties may

be acting “under color of state law” and thus held liable under § 1983: 

‘Private persons, jointly engaged with state officials in the prohibited action, are

acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law

does not require that the accused be an officer of the State. It is enough that he is

a willful participant in joint activity with the State or its agents.’

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (quoting United States v. Price, 383 U.S. 787,

794 (1966)). To support such a conspiracy claim, plaintiffs “must allege facts that suggest: 1) an

agreement between the private and public defendants to commit an illegal act and 2) an actual

deprivation of constitutional rights.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (citations

omitted).

To find state action by a private individual in the absence of an alleged conspiracy, a plaintiff

must show that the private actor “performs a function which is traditionally the exclusive province

of the state” or that “there is a nexus between the state and the action of the private defendant such

that the action is fairly attributable to the state.” Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.

1989). Under the latter alternative, 

a finding of state action is justified “‘only where it can be said that the state is

responsible for the specific conduct of which the plaintiff complains.’ A state is not

responsible for a private party’s decisions unless it ‘has exercised coercive power or

has provided such significant encouragement, . . . that the choice must in law be

deemed to be that of the state.’”

Id. (citations omitted).

 

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 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.

7

Attorneys do not perform a function that is traditionally the exclusive province of the state.

In addition, there is no nexus between the State and the actions of plaintiff’s former attorney such

that the attorney’s actions are fairly attributable to the State. Further, plaintiff has alleged no agreement between his former attorney and any state actor to commit an illegal act. Without an allegation of some agreement between his former attorney and a state actor, plaintiff has failed to state

a viable claim under § 1983 against defendant Cook, and his claims against him should be dismissed.

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

defendants who are 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).3

 

SIGNED this 2nd day of June, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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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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