IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

LEON TASBY, PRO SE, §

TDCJ-CID # 362523, §

Previous TDCJ-CID #302135, §

§

Plaintiff, §

§

v. § 2:05-CV-0032

§

ABE LOPEZ, State District Judge for the §

 108th District Court of Potter County, §

THE COUNTY OF POTTER, at §

 Amarillo, Texas, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff LEON TASBY, acting pro se and while incarcerated as a prisoner in the

Texas Department of Corrections, Institutional Division, has filed suit pursuant to Title 42, United

States Code, Section 1983 complaining against the above-referenced defendants and has been

allowed to proceed in forma pauperis.

Plaintiff claims defendant LOPEZ violated his Due Process rights in a case filed by

plaintiff in his court. Plaintiff states he is also suing THE COUNTY OF POTTER for defendant

LOPEZ’ actions.

Plaintiff requests compensatory damages in a total amount of $11,500,000.00;

punitive damages in a total amount of $4,000,000.00; nominal damages totaling $2.00, and that the

Court “enter a Judgment that will reverse all of the previous state courts [sic] judgments in this

action and remand this action back to the State District Court to schedule this action for an award

of damages Trial only.”

 

 Case 2:05-cv-00032-J-BB Document 5 Filed 06/24/05 Page 1 of 4 PageID 35
 1

A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton

v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

 2

Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to

mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous

a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

2

JUDICIAL REVIEW

When a prisoner seeks redress from a governmental entity or officer or employee of

a governmental entity, the Court must evaluate the complaint and dismiss it without service of

process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous1

, malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal

of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional

facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need

not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir.

1991)2

.

The District Judge has reviewed plaintiff's pleadings to determine if his claims present

grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

Plaintiff’s claims are based upon the judicial rulings issued by defendant LOPEZ in

the course of a suit plaintiff filed against several prison employees alleging negligence and

violations of the state constitution and seeking claims under the Texas Tort Claims Act. Plaintiff

alleges the defendant’s rulings denied him procedural due process, subjecting him to “personal

humiliation, personal emotional distress, personal mental anguish, personal physical injuries and

 

 Case 2:05-cv-00032-J-BB Document 5 Filed 06/24/05 Page 2 of 4 PageID 36
 3

See paragraph 17 of the hand-printed attachment to plaintiff’s original complaint.

3

long term and time of pain physically, without a proper opportunity to redress this matter at State

District Court level for at least three and a half years3

.”

Thus, it appears the acts or omissions complained of occurred more than three years

ago. There is no federal statute of limitations for civil rights actions; therefore, the two-year Texas

general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.

1993). The instant suit, filed more than three years after the events giving rise to plaintiff’s claims

appears to have been filed well after expiration of limitations. Consequently, plaintiff’s claims lack

an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104

L.Ed.2d 338 (1989).

Moreover, there exist additional, independent bases for the dismissal of plaintiff’s

claims as frivolous.

Plaintiff’s claims against defendant LOPEZ are based on his rulings issued during

the course of plaintiff’s lawsuit. Judges enjoy absolute immunity for judicial acts performed in

judicial proceedings. Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288

(1967). Plaintiff's only complaint against defendant LOPEZ is his handling of plaintiff’s lawsuit and

clearly falls within the scope of acts protected by absolute immunity. Consequently, plaintiff's

claims against defendant LOPEZ lack an arguable basis in law and are frivolous. Neitzke v.

Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Lastly, the only apparent basis for plaintiff’s claim against defendant THE COUNTY

OF POTTER is respondeat superior; however, theories of vicarious liability, such as respondeat

superior, cannot support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303

 

 Case 2:05-cv-00032-J-BB Document 5 Filed 06/24/05 Page 3 of 4 PageID 37
4

(5th Cir. 1987). Consequently, plaintiff’s claims against THE COUNTY OF POTTER lack an

arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104

L.Ed.2d 338 (1989).

CONCLUSION

Pursuant to Title 28, United States Code, sections 1915A and 1915((e)(2), as well as

Title 42, United States Code, section 1997e(c)(1),

IT IS HEREBY ORDERED:

The referral of the instant cause to the United States Magistrate Judge is hereby

withdrawn.

This Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS.

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record

by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O.

Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court

for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED this 24th day of June, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

 Case 2:05-cv-00032-J-BB Document 5 Filed 06/24/05 Page 4 of 4 PageID 38