Ibn Khedru Ankh a/k/a Frederick Louis Pugh v. Texas Department of Criminal Justice, et al--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-99-035-CV

IBN KHEDRU ANKH A/K/A

FREDERICK LOUIS PUGH,

Appellant

v.

TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 31,434

O P I N I O N

Appellant Pugh appeals pro se from an order granting summary judgment dismissing his suit against Appellee Gina DeBottis. The order found that DeBottis had absolute prosecutorial immunity from suit and liability.

Appellant Pugh sued Appellee DeBottis and five others // for compensatory and punitive damages totaling $1,999,998. The trial court dismissed the case against all defendants except Appellee DeBottis. There is no appeal from this order.

Appellant Pugh is an inmate in the Hughes Unit, TDCJ-Institutional Division in Coryell County. Appellee DeBottis is a Special Prosecutor with the TDCJ in Gatesville. Pugh asserted claims against DeBottis under 42 U.S.C. 1983 and 1985 based on alleged violations of the 8th, 9th, 13th and 14th Amendments to the U.S. Constitution; and for "selective" and "vindictive" prosecution in violation of Art. XVI 33 and 40 of the Texas Constitution; Art. IV 22 of the Texas Constitution; Rule 3.09 of the Texas Disciplinary Rules; and Section 41.102 of the Texas Government Code.

Pugh thereafter filed a motion to dismiss his federal claims, which the trial court granted. DeBottis filed a motion for summary judgment which the trial court granted, dismissing all of Pugh's state law claims.

Appellant appeals on one point of error:

[1] "The trial court reversably erred in granting defendant DeBottis' motion for summary judgment," and [2] "In finding that DeBottis has absolute prosecutorial immunity from suit and liability."

Pugh, an inmate was involved in an altercation with several correctional officers on December 14, 1994. He sought to have an officer charged with assault. Investigation revealed that Pugh had in fact assaulted two correctional officers, Timothy Eary and Montgomery Sanders. Pugh was charged with retaliation against the officers. DeBottis handled the prosecution. Pugh was indicted for retaliation of Officer Eary in May 1995. Pugh's trial resulted in a hung jury. Ms. DeBottis did not seek to try Pugh again. In September 1996, Pugh was indicated for retaliation against Officer Sanders. On May 3, 1998, DeBottis voluntarily dismissed this indictment against Pugh because the applicable legal precedents made it unclear whether the charge of "retaliation" could be maintained based on the conduct alleged against him. Specifically, DeBottis decided to file a motion to dismiss the charge after the Texas Court of Criminal Appeals upheld a reversal of a conviction of an inmate charged with retaliation. //

A party is entitled to a summary judgment if there is no genuine issue as to any material fact and if the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The movant must disprove at least one element of the plaintiff's causes of action, or must establish all elements of an affirmative defense to the non-movant s claims. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Goston v. Hutchinson, 853 S.W.2d 729, 731 (Tex. App. Houston 1993, no writ). Evidence favorable to the non-movant will be taken as true and all reasonable inferences must be indulged in favor of the non-movant. Montgomery v. Kennedy, 669 S.W.2d 309, 310 (Tex. 1984). Once a movant produces sufficient evidence to establish the right to summary judgment, the non-movant must set forth sufficient evidence to give rise to a fact issue to avoid summary judgment. Alanis v. Univ. of Texas, 843 S.W.2d 779, 784 (Tex. App. Houston 1992, writ denied). Moore Burger Ins. V. Phillips Petroleum Co., 492 S.W.2d 934, 936, 37 (Tex. 1972). If a defendant establishes an affirmative defense that would bar suit as a matter of law, the plaintiff must present summary judgment proof that raises a fact issue to at least one element of the affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Conclusory assertions by a non-movant are insufficient to raise a genuine issue of material fact. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

The trial court granted summary judgment based on absolute prosecutorial immunity. It is undisputed that DeBottis was at all time a prosecutor with the Special Prison Unit of Texas, which is charged with prosecuting crimes within TDCJ throughout Texas. As a prosecutor, DeBottis is entitled to absolute prosecutorial immunity. This immunity provides an absolute bar to the claims asserted by Pugh. Imbler v. Pachtman, 424 U.S. 409 (1976); Clawson v. Wharton County, 941 S.W.2d 267, 271 (Tex. App. Corpus Christi 1996, writ denied); Brandt v. West, 892 S.W.2d 56, 70 (Tex. App. Houston 1994, writ denied). A prosecutor has absolute immunity for activities intimately associated with the judicial phase of the criminal process. Clawson at 271; Imbler at 430. To allow a suit against prosecutors would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. Imbler at 423-24. The law of absolute immunity applies to all acts flowing from the prosecutorial function even where a prosecutor acts in bad faith. Imbler at 430-31.

Appellant argues that because the retaliation charges were dismissed against him, such raises a real issue of fact as to whether DeBottis committed perjury before the grand jury. We reject this argument, but even if Pugh s allegations were true, the doctrine of absolute prosecutorial immunity completely insulates DeBottis from liability. The fact that DeBottis dismissed the second case against Pugh when the law became unclear demonstrates that she was acting responsibly.

Appellant further argues that DeBottis is not entitled to absolute immunity because she was not a duly constituted Assistant District Attorney for Coryell County because her swearing in as such was not properly recorded. The summary judgment proof is that she was sworn in by District Judge Phillip Zeigler, and this was not rebutted. Moreover, the Special Prison Unit gives specific authority for DeBottis to prosecute felony offenses committed by prisoners.

Ms. DeBottis had total prosecutorial immunity from suit and liability. The trial court s granting of her motion for summary judgment was correct.

Pugh s point of error and all contentions made thereunder are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 19, 2000

Do not publish