Burke v. Becerra et al, No. 4:2022cv03329 - Document 10 (S.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER - The court will issue a separate order authorizing service of process and will request an answer from Deputy Lily regarding the plaintiff's allegation that he was denied as many as 50 meals while in disciplinary segregation between June and September 2022. All other claims asserted by the plaintiff are DISMISSED with prejudice pursuant to 28 U.S.C.§ 1915(e)(2)(B). (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Burke v. Becerra et al Doc. 10 Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 1 of 15 United States District Court Southern District of Texas ENTERED April 04, 2023 Nathan Ochsner, Clerk IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ANDREW BURKE, Inmate #00242515, § § § Plaintiff, § § v. § § JUDGE CHRISTIAN BECERRA, et al.,§ § Defendants. § CIVIL ACTION NO. H-22-3329 MEMORANDUM OPINION AND ORDER The plaintiff, Andrew Burke Prisoner's Civil Rights (Inmate #00242515), has filed a Complaint under 42 U.S.C. § 1983 ("Complaint") ( Docket Entry No. 1) concerning criminal charges that are pending against him in state court and the conditions of his confinement at the Fort Bend County Jail in Richmond, Texas. The court issued an Order for More Definite Statement (Docket Entry No. 5) and Burke has filed a response ("Plaintiff's MOS") (Docket Entry No. 6), which provides additional details about his claims. Because Burke is a prisoner who proceeds in forma pauperis, the court the is Complaint required if malicious," it to scrutinize determines "fails to that state a the the claim claims action on and is which dismiss "frivolous relief may or be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e) (2) (B). After considering all of the pleadings, the court concludes that Burke's claims against all but one of the defendants must be dismissed for the reasons explained below. Dockets.Justia.com Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 2 of 15 I. Burke, who is Background presently confined as a pretrial detainee, reports that he was admitted to the Fort Bend County Jail most recently on June 13, 2022. 1 Burke acknowledges that he has been charged with several serious offenses. 2 Public records from the Fort Bend County District Clerk's Office confirm that Burke has been charged with indictments in the following cases: (1) aggravated assault with a deadly weapon in Case No. 21-DCR-097693; (2) assault on a public servant in Case No. 21-DCR-097923; and (3) solicitation of capital murder for remuneration in Case No. 22-DCR099866.3 filed According to these records the charges were originally against Burke in the 434th District Court for Fort Bend County, Texas, but the cases were later transferred to a different judge and are now pending in the 458th District Court for Fort Bend County. 4 Burke has filed this lawsuit under 42 U.S.C. § 1983 against 1 Plaintiff' s MOS, Docket Entry No. 6, p. 1 (Response to Question 1) . For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic case filing system, ECF. 2 Id. at 1 (Response to Questions 3(a) and 3(b)). 3See Fort Bend County District Clerk's Office, available at: https: //www. tylerpaw. co. fort-bend. tx. us ( last visited March 30, 2023). 4 See id.; see also Plaintiff's MOS, Docket Entry No. 6, p. 1 (Response to Question 3 (a)) (noting that Judge Christian Becerra, who presides over the 434th District Court, recused himself sometime after this lawsuit was filed). -2- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 3 of 15 Judge Christian Becerra, who presides over the 434th District Court for Fort Bend County. 5 Burke also sues Fort Bend County District Attorney Brian Middleton. 6 Noting that he was arrested initially on November 23, 2021, and later released on bond, 7 Burke contends that Judge Becerra revoked his original bond and set a new bond that "quadrupledu the amount in all three of his cases for a total of $370,000.00. 8 Burke blames Middleton for seeking an excessive bond and for making multiple requests for the trial court to order a mental competency evaluation. 9 In addition, Burke sues Fort Bend County Sheriff Eric Fagan in connection with his arrest, alleging that he has been the victim of malicious prosecution. 10 Burke sues Major Webb, who reportedly serves as the Fort Bend County Jail Administrator, because Burke was "beatenu by several officers on October 1, 2022. 11 Burke also sues Deputy Lily for restricting his telephone privileges while he 5 Complaint, Docket Entry No. 1, p. 3. 6 Id. 7 Plaintiff' s MOS, Questions 2 and 4(b)). Docket Entry No. 6, p. 1 (Responses 8 Id. at 3 (Responses to Questions 4(a) and 4(b)). 9 Complaint, Docket Entry No. 1, pp. 3-4. 10 Plaintiff' s Question 6). MOS, Docket Entry 11 No. 6, p. 6 (Response to to Complaint, Docket Entry No. 1, p. 4; Plaintiff's MOS, Docket Entry No. 6, p. 9 (Response to Question 9). -3- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 4 of 15 was in disciplinary segregation. 12 Explaining that Deputy Lily has placed him in disciplinary segregation numerous times, where he has been kept in a "padded cell" due to his behavior, Burke claims that he was denied as many as 50 meals between June and September 2022. 13 Burke seeks $5 million in compensatory damages and $500 million in punitive damages from the defendants. 14 his or writ of habeas release from confinement on a "PR bond" Burke also seeks corpus and he asks this court to intervene and dismiss all of the charges pending against him. II. 15 Standard of Review Federal district courts are required by the Prison Litigation Reform Act ( "PLRA") to screen prisoner complaints cognizable claims or dismiss the complaint if it malicious, or fails to state a to is identify frivolous, claim upon which relief may be granted. See Crawford-El v. Britton, 118 S. Ct. 1584, 1596 (1998) (summarizing provisions found in the PLRA, including the requirement that district courts screen prisoners' complaints and summarily dismiss frivolous, malicious, or meritless actions); see also Coleman 12 v. Plaintiff' s Question 7(a)). Tollefson, MOS, Docket 135 S. Ct. Entry No. 1759, 6, p. 13 Id. at 8 (Responses to Questions 8(a)-8(d)). 14 Complaint, Docket Entry No. 1, p. 4. -4- 1761-62 6 (2015) (Response to Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 5 of 15 (discussing the screening provision found in the federal in forma pauperis statute, 28 U.S.C. § 1915(e) (2), and reforms enacted by the PLRA that were "'designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good'") (quoting Jones v. Bock, 127 S. Ct. 910, 914 ( 2 007) ) ( alteration in original) . A complaint is frivolous either in law or in fact.'" 1733 (1992) ( 198 9) ) . if it "'lacks an arguable basis Denton v. Hernandez, 112 S. Ct. 1728, (quoting Neitzke v. Williams, 109 S. Ct. 1827, 1831 "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Harper v. 1999) (citations and Showers, internal 174 F.3d 716, quotation 718 marks (5th Cir. omitted). "A complaint lacks an arguable basis in fact if, after providing the plaintiff necessary, the the opportunity facts to present alleged are additional facts clearly baseless." when Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citation omitted). To avoid dismissal for failure to state a claim, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level [.]" Twombly, 127 S. Ct. 1955, 1965 (2007) complaint has not set Bell Atlantic Corp. (citation omitted). forth "enough facts to state a If the claim to relief that is plausible on its face," it must be dismissed. at 1974. v. Id. A reviewing court must "accept all well-pleaded facts as true and construe the complaint in the light most favorable to the -5- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 6 of 15 plaintiff." Heinze v. 2020) Tesco Corp., (citation omitted). But 971 it F.3d 475, 479 need not accept (5th Cir. as true any "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. ( internal quotation marks and citations omitted); see also White v. Cir. 2 021) elements U.S. (same) . of a Corrections, cause of action, 307 ( 5th supported by mere conclusory Ashcroft v. Iqbal, 129 S. Ct. 1937, (citing Twombly, 127 S. Ct. at 1965). III. A. 996 F. 3d 302, In other words, " [ t] hreadbare recitals of the statements, do not suffice." 1949 (2009) LLC, Discussion Request for Re1ease From Confinement Burke asks this court to intervene in his ongoing state court proceedings and Alternatively, corpus to grant Burke him asks release the court release him from the on his own to issue a recognizance. writ of habeas Fort Bend County Jail. 17 claims are not actionable in a lawsuit under 42 U.S.C. § 1983. writ of habeas 16 These The corpus provides a remedy only for prisoners who challenge the "fact or duration" of their confinement and seek "immediate release or a speedier release from that imprisonment." Preiser v. Rodriguez, 93 S. Ct. 1827, 1841 (1973). Burke also asks the court to dismiss all the charges pending 16 i Complaint, Docket Entry No. 1, p. 4. 1Id. -6- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 7 of 15 against criminal him. 18 A federal proceedings that district are court may pending exceptional circumstances are present. S. Ct. 746, 750-51 (1971). in not state intervene court in unless See Younger v. Harris, 91 Abstention is required under the Younger doctrine when "(l) the federal proceeding would interfere with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges." Bice v. Louisiana Public Defender Board, 677 F. 3d 712, 716 ( 5th Cir. 2012) ( internal quotation marks and citation omitted). The Younger court declines criteria are to intervene because all satisfied in this instance. three of the First, the pleadings reflect that Burke is the subject of an ongoing criminal prosecution in state court. 19 Second, the State of Texas has an important interest in enforcing its own laws by pursuing criminal charges. See Despain v. Johnston, 731 F.2d 1171, 1176 (1984) state has a ("The strong interest in enforcing its criminal laws."). Third, a pretrial detainee may challenge the amount of his bond by filing an application for a writ of habeas corpus under Article 11.08 of the Texas Code of Criminal Procedure with the trial court. If the trial court denies habeas relief, the applicant's remedy is 19 Plaintiff' s MDS, Questions 3(a)-3(c)). Docket Entry No. -7- 6, pp. 1-2 (Response to Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 8 of 15 to take a direct appeal to an intermediate appellate court and then petition for discretionary review by the Texas Court of Criminal Appeals. See, Crim. App. ~, 1986) (Tex. Crim. App. not allege facts intervention, his Ex parte Twyman, 716 S.W.2d 951, (citing Ex parte Payne, 1981) 952 618 S.W.2d 380, (citations omitted)). (Tex. 382 n.5 Because Burke does showing that exceptional circumstances warrant request for release from confinement and for dismissal of the charges against him will be dismissed for failure to state a claim upon which relief may be granted. 20 B. C1aims Against Judge Becerra Burke seeks monetary damages from Judge Becerra for setting an excessive bond in the criminal cases that are pending against him. 21 Burke cannot connection recover with monetary rulings made damages from in criminal his Judge Becerra case in because "[j]udicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions.u Boyd v. 1994). Biggers, 31 F.3d 279, 284 (5th Cir. The doctrine of absolute judicial immunity protects judges 20 The court declines to address whether Burke is entitled to habeas corpus relief because records reflect that he has filed two habeas corpus proceedings to challenge the amount of his bail. See Burke v. Fagan, Civil No. H-22-4407 (S.D. Tex. Dec. 28, 2022) (Docket Entry No. 5) and Burke v. Fagan, Civil No. H-23-104 (S.D. Tex. Feb. 8, 2023) (Docket Entry No. 3). Both proceedings were dismissed because Burke has not yet exhausted available remedies in state court. 21 Complaint, Docket Entry No. 1, p. 4. -8- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 9 of 15 from suit, Waco, not s. 112 just from liability for damages. Ct. 286, 288 (1991). See Mireles v. Because setting a bond in a criminal case is a judicial function, Judge Becerra is entitled to immunity and the claims against him will be dismissed pursuant to 28 U.S.C. C. 1915 (e) (2) (B). § C1aims Against District Attorney Midclleton Burke seeks monetary damages from District Attorney Middleton for seeking a high bond in the criminal cases against him and for requesting an evaluation of Burke's mental trial. 22 competency to stand Prosecutors are entitled to absolute immunity from civil rights claims for actions taken in the scope of their duties in initiating a prosecution and presenting the state's case. See Imbler v. Pachtman, 96 S. Ct. 984, 995 (1976) (observing that judges and grand entitled jurors to acting immunity within and the holding scope that of their prosecutors duties are are also absolutely immune from a civil suit for damages for initiating a prosecution and in presenting the state's case); see also Loupe v. O'Bannon, 824 F.3d 534, 538 (5th Cir. 2016) ("A prosecutor enjoys absolute immunity when her actions are 'intimately associated with the judicial phase of the criminal process.'") (quoting Imbler, 96 S. Ct. at 995). Because seeking a bond and requesting a competency evaluation for a criminal defendant are within the scope of a prosecutor's duties, Middleton is entitled to immunity from Burke's -9- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 10 of 15 claims. Therefore, the claims against Middleton will be dismissed pursuant to 28 U.S.C. D. § 1915 (e) (2) {B). C1aims of Ma.1icious Prosecution Against Sheriff Fagan Burke alleges that Sheriff Fagan caused the criminal charges to be filed against him in retaliation for a "small claims lawsuit" that Burke filed. 23 Burke seeks monetary damages from Sheriff Fagan for engaging in "malicious prosecution." 24 A claim for malicious prosecution under the Fourth Amendment "does not accrue until favor." Winfrey v. the prosecution ends in the plaintiff's Rogers, 901 F.3d 483, 492 (5th Cir. 2018) (internal quotation marks and citation omitted); see also Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022) (noting that to maintain a Fourth Amendment claim for malicious prosecution a plaintiff "must demonstrate, among other things, that he obtained termination of the underlying criminal prosecution") original). him, a favorable (emphasis in Because the criminal charges remain pending against Burke cannot state a claim for malicious prosecution. As a result, the claims against Sheriff Fagan will be dismissed pursuant to 28 U.S.C. E. § 1915(e) (2) (B). C1aims Against Major Webb Burke alleges that several officers at the Jail used excessive 23 Plaintiff' s Question 6) • MDS, Docket Entry -10- No. 6, p. 6 (Response to Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 11 of 15 force against him during an incident that occurred at around 1:00 a.m. on October 1, 2022. 25 As Jail Administrator, Burke claims that Major Webb is liable in his supervisory capacity for the beating administered by officers under his command. 26 Officials cannot be held vicariously liable in a suit under § 1983 for the conduct of those under their supervision. See Alderson v. Concordia Parish Correctional Facility, 848 F.3d 415, 420 (5th Cir. 2017) (citation omitted); see also Ashcroft v. Igbal, 12 9 S. Ct. 1937, 194 9 ( 200 9) ( supervisory officials are not liable for wrongdoing by subordinates because "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct"). Supervisory officials are only accountable for their own actions "and for implementing unconstitutional policies that causally result in injury to the plaintiff." 421. Burke does not allege facts Alderson, 848 F.3d at showing that Major Webb was present when the use of force occurred or that he was injured as the result Therefore, of a deficient policy implemented at the Jail. the claims against Major Webb will be dismissed for failure to state a claim upon which relief may be granted under § 1983. 27 25 Plaintiff' s MDS, Docket Questions 9(a) and 9(b)). 26 Entry No. 6, p. 9 (Response to Complaint, Docket Entry No. 1, p. 4. 27 Burke's claims against the officers who reportedly assaulted him on October 1, 2022, are pending in another lawsuit that Burke (continued ... ) -11- Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 12 of 15 F. Claims Against Deputy Lily: Telephone Privileges Burke alleges restricting his that access Deputy to segregation. 28 disciplinary "prisoners have Lily violated the telephone The Fifth his while Circuit rights he has by was held in that 'no constitutional right to unlimited telephone use."' Wagenfeald v. Gusman, 675 F.3d 475, 485 (5th Cir. 2012) (quoting Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982)); see also Hamilton v. Lyons, 74 F.3d 99, 106-07 (5th Cir. 1996) (finding that a pretrial detainee's claim that he was denied telephone access for three days did not give rise to a constitutional claim). allegation about privileges while the in restrictions disciplinary constitutional violation. F. App' x 646, 648 placed on segregation his do not Burke's telephone state a See Palmisano v. Bureau of Prisons, 258 (5th Cir. 2007) (per curiam) (Restrictions or loss of an inmate's telephone or visitation privileges "provide no basis for a claim of rights.") ( citations omitted) . the denial of constitutional Therefore, the claim against Deputy Lily for curtailing Burke's telephone privileges will be dismissed 27 ( • • • continued) has filed in this district. See Burke v. Masters, Civil No. H-23361 (S.D. Tex.) (Docket Entry No. 1, pp. 3, 6). Accordingly, the court does not address these allegations further. 28 Plaintiff' s MOS, Docket Questions 8(d) and 8(e)). Entry -12- No. 6, p. 8 (Response to Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 13 of 15 pursuant to 28 U.S.C. G. § 1915(e) (2) (B) . 29 C1aims Against Deputy Li1y: Missing Mea1s Burke claims that as a result of being placed in disciplinary segregation by Deputy Lily, he missed as many as 50 meals between June and September 2022, which caused him to lose over 30 pounds. 30 Burke, who stands at 5'9" tall, reportedly weighed 220 pounds on June 13, 2022, but now weighs only 190 pounds. 31 Burke claims that on an unspecified date he was seen by a nurse practitioner, who authorized and Burke to have "double portions" of his meals prescribed "ensure," but he required no other medical care for his weight loss. 32 The Fifth Circuit has held that the complete denial of food over an extended period of time may state a claim for relief under 29 Burke, who reports that he has fired his counsel and now represents himself in state court, does not allege facts showing that the loss of telephone privileges hampered his ability to contact his attorney or to access the courts. See Plaintiff's MOS, Docket Entry No. 6, p. 2 (Response to Question 3(d)). The court notes that Burke has alleged in other cases that his former defense attorney was refusing to accept calls from Burke on his cellphone and that his office had blocked Burke's calls from the Jail. See Burke v. Diaz, Civil No. H-23-332 (S.D. Tex.) (Docket Entry No. 1, p. 4); see also Burke v. Webb, Civil No. H-22-cv-4366 (S.D. Tex.) (Docket Entry No. 15, pp. 1-2). Burke's claim that he has been denied access to courts by Jail personnel has been dismissed as frivolous in another lawsuit. See Burke v. Chesser, Civil No. H23-842 (S.D. Tex. March 14, 2023) (Docket Entry No. 4, pp. 4-5). 30 Plaintiff' s MOS, Docket Entry No. Questions 8(c) and 8(g)). 6, 31 Id. at 11 ( Response to Question 11) . 32 Id. at 9 (Response to Question 8 (g)). -13- pp. 8-9 (Response to Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 14 of 15 § 1983. See Cooper v. 1078, 1083 ( 1991) Sheriff. Lubbock County, Texas, 929 F.2d ( finding that a prisoner who alleged that he was continuously denied food for 12 consecutive days presented facts that could entitled him to relief). However, the Fifth Circuit has held that three meals a day are not required and it has expressed doubt that missing as many as 50 meals over a period of five months is adequate to state a claim in the Eighth Amendment context. Green v. Ferrell, 801 F.2d 765, 771 (5th Cir. 1986) See (holding that two meals per day was sufficient to meet constitutional safeguards where the food provided was nutritionally adequate); see also Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (expressing doubt that a prisoner who missed 50 meals over a period of five months was "denied anything close to a minimal measure of life's necessities") . As a pretrial detainee, Burke's rights are protected by the Due Process Clause, confinement. 633, 650 which prohibits punitive See Hare v. City of Corinth. ( 5th Cir. 1996) ( en bane) conditions Mississippi, ( "The Due Process of 74 F.3d Clause proscribes any punishment of pretrial detainees, cruel and unusual or otherwise."). substantial amount segregation as a Because of Burke weight pretrial alleges while detainee, that confined the court he in has lost a disciplinary concludes that Burke's claim that he was denied as many as 50 meals between June and September Accordingly, 2022 requires the court will an answer issue a -14- from the defendant. separate order authorizing Case 4:22-cv-03329 Document 10 Filed on 04/04/23 in TXSD Page 15 of 15 service of process regarding Burke's and will claim that disciplinary segregation. IV. he was denied from Deputy Lily 50 meals while in All other claims will be dismissed. Conclusion and Order Based on the foregoing, 1. request an answer the court ORDERS as follows: The court will issue a separate order authorizing service of process and will request an answer from Deputy Lily regarding the plaintiff's that he was denied as many as allegation 50 meals while in disciplinary segregation between June and September 2022. 2. All other DISMISSED claims with asserted by prejudice the plaintiff pursuant to are 28 U.S.C.§ 1915(e) (2) (B). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. SIGNED at Houston, Texas, on this ~ t h day of ,A,or,'I, 2023. LAKE SENIOR UNITED STATES DISTRICT JUDGE -15-
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