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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION

ANTHONY SCOTT WHITE §

v. § Civil Action No. 5:24cv18-RWS-JBB

MICHAEL LUSK, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Anthony White, an inmate now confined in the Texas Department of Criminal 

Justice - Correctional Institutions Division proceeding pro se, filed this civil rightslawsuit under 42

U.S.C. §1983 complaining of alleged violations of his constitutional rights by officials in Bowie 

County,Texas. The lawsuit wasreferred to the undersigned United States Magistrate Judge pursuant 

to 28 U.S.C. 636(b)(1) and (3) and Local Rule CV-72 of the Local Rules of Court for the Eastern 

District of Texas. The named Defendants are retained defense counsel Michael Lusk, public 

defenderBart Craytor, assistant district attorneys Kelly Crisp and Lauren Richards, and an unnamed 

arresting officer.

I. Background

On April 10, 2024, Plaintiff was ordered to pay the statutory filing fee of $405.00 or submit 

a certified in forma pauperis data sheet or inmate account summary sheet, as required by 28 U.S.C.

§ 1915(b). Plaintiff received a copy of this order on April 19, 2024, but has not complied, nor has 

he responded in any way. Consequently, the lawsuit may be dismissed for failure to prosecute or 

to obey an order of the Court. Fed. R. Civ. P. 41(b).

II. Discussion

However, Plaintiff’s lawsuit suffers from more significant flaws. He sues retainedcounsel 

Michael Lusk and public defender Bart Craytor, but attorneys serving as defense counsel, even if

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court-appointed, are not state actors and therefore cannot be sued under § 1983. Polk County v. 

Dodson, 454 U.S. 312, 318, 324-25 (1981); Mills v. Criminal District Court No. 3, 837 F.2d 677, 

679 (5th Cir. 1988). Although Plaintiff asserts that counsel acted “in support of working in cahoots 

with District Attorney,” this vague and conclusory allegation wholly fails to set out a viable 

conspiracy claim sufficient to render counsel a state actor. Small v. Dallas County, Texas, 170 

F.App’x 943, 944 (5th Cir. 2006); Curry v. Shumate, civil action no. 6:19cv594, 2020 U.S. Dist. 

LEXIS 48594, 2020 WL 1312938 (E.D.Tex., February 10, 2020),Report adopted at 2020 U.S. Dist.

LEXIS 47379, 2020 WL 1308676 (E.D.Tex., March 19, 2020). Plaintiff’s claims against defense 

counsel fail to state a claim upon which relief may be granted.

Plaintiff also sues prosecutors Kelly Crisp and Lauren Richards. The Supreme Court has 

explained that actstaken by a prosecutor in preparing for the initiation of judicial proceedings or for 

trial, and which occur in the course of her role as an advocate for the State, are entitled to the 

protections of absolute immunity. Imbler v. Pachtman, 424 U.S. 409. 431 (1976); Boyd v. Biggers, 

31 F.3d 279, 285 (5th Cir. 1994). Plaintiff’s conclusory allegations that the prosecutors “used 

fabricated documents and then switched them during sentencing,” tampered with the video, lied to 

the court, and prosecuted him for disciplining his children which is not illegal are not sufficient to 

overcome thisimmunity. Brown v. Dove, 519 F.App’x 237, 238 (5th Cir. 2013); Jones v. Texas, 267 

F.App’x 392, 393 (5th Cir. 2008). Plaintiff’s claims against the prosecutors likewise fail to statea 

claim upon which relief may be granted.

Finally, Plaintiff sues an unnamed arresting officer, alleging “illegal search and seizure, 

coerce a child to lie, boldly lied at trial on stand.” Dkt. No. 1, p. 8. His statement of claim 

concerning the officer reads as follows:

Went to trial with false crimes; stated (officer) he was at my residence for health and 

welfare check, day prior I called the police to report a break into my home threw 

[sic] children. Day of arrest I was told they were there to take another report for a 

second incident, I call about the person lingering around my residence and breaking 

in again. . . .

Id., p. 9.

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Setting aside the entirely conclusory and unclear nature of these claims, it is apparent that 

Plaintiff’s claims, if proven, would cast doubt upon the validity of his conviction. This is 

underscored by the fact that Plaintiff’s requested relief reads “drop all charges and crimes deriving 

from entrapment; expunge my record of these lies; reimbursement in full; immediate release from 

prison.” Id.

Plaintiff cannot obtain release from prison or dismissal of the charges against him in a civil 

rights lawsuit such as the present one, but must utilize the remedies available in habeas corpus. 

Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983); Preiser v. Rodriguez, 411 U.S. 475, 490 

(1973). Because his allegations would, if proven, call into question the validity of his conviction, 

his claims for monetary damages against the arresting officer are barred until such time as he can 

show that the conviction at issue has been overturned, expunged, or otherwise called into question. 

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 

1996) (false arrest claim was barred by Heck where a finding in the plaintiff’s favor would imply 

the invalidity of the plaintiff’s conviction). Consequently, Plaintiff’s claims against the arresting 

officer fail to state a claim upon which relief may be granted. Crittindon v. LeBlanc, 37 F.4th 177, 

190 (5th Cir. 2022) (complaint fails to state a claim where it is barred by Heck).

III. Conclusion

Twenty-eight U.S.C. §1915A requiresthat assoon as practicable, district courtsmustreview

complaints wherein prisoners seek redress from governmental entities or their employees and 

identify cognizable claims or dismiss the complaint or any portion thereof if the complaint is 

frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief.

A complaint fails to state a claim upon which relief may be granted where it does not allege 

sufficient facts that, taken as true, state a claim that is plausible on its face and thus does not raise 

a right to relief above the speculative level. Montoya v. FedEx Ground Packaging System Inc., 614 

F.3d 145, 149 (5th Cir. 2010), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

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1955, 167 L.Ed.2d 929 (2007). A claim has factual plausibility when the pleaded factual content 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged. Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. 

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). This plausibility standard is not akin to a 

probability requirement, but asksfor more than a possibility that the defendant has acted unlawfully. 

Twombly, 550 U.S. at 556.

Detailed factual allegations are not required, but the claim must contain more than “an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677-78. A 

pleading offering “labels and conclusions” or a “formulaic recitation of the elements of a cause of 

action” will not suffice, nor does a complaint which provides only naked assertions that are devoid 

of further factual enhancement. Id. at 678.

Although all well-pleaded facts are taken as true, the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, orlegal conclusions. Gentilello v.Rege, 627 

F.3d 540, 544 (5th Cir. 2010), citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). 

Dismissal is proper if a complaint lacks a factual allegation regarding any required element 

necessary to obtain relief. Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (5th Cir. 2006).

The Fifth Circuit has explained that while pro se complaints are given the benefit of liberal 

construction, such litigants are not exempt from the requirement that they plead sufficient facts to 

allege a plausible claim for relief or from the principle that mere legal conclusions do not suffice to 

prevent dismissal. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). This means 

that the court is still bound by the allegations of the complaint and is not free to speculate that the 

plaintiff “might” be able to state a claim if given yet another opportunity to amend the complaint. 

Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). The court explained 

as follows:

For example, if an IFP plaintiff, in amending his complaint through a response to a 

questionnaire, allegesin hisresponse that he received inadequate medical care while 

incarcerated, we should not reverse the dismissal of the complaint on the basis that 

the plaintiff could possibly add factsthat would demonstrate that he wastreated with

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deliberate indifference in the medical care that he received. As another example,if 

an IFP prisoner asserts in the questionnaire response that he has been denied 

recreation time, we should not reverse dismissal on the ground that he might also be 

able to assert a claim that the denial was in retaliation for his having filed a 

grievance.

Id. 

Plaintiff’s lawsuit fails to state a claim upon which relief may be granted because the 

defendant defense attorneys are notstate actors, the prosecutors are protected by absolute immunity, 

and the claims against the arresting officer are barred by Heck. Consequently, the lawsuit should 

be dismissed.

RECOMMENDATION

It is accordingly recommended that the above-styled civil action be dismissed with prejudice 

as to the Defendants Michael Lusk, Bart Craytor, Kelly Crisp and Lauren Richards, and with 

prejudice against the arresting officer until such time as Plaintiff can show that his conviction has 

been overturned, expunged, or otherwise set aside. The dismissal of this lawsuit shall not prevent 

Plaintifffromchallenging his conviction through any lawful means, including but not limited to state 

or federal habeas corpus proceedings or executive clemency.

A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specific written objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

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Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 24th day of July, 2024.

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