United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE
Deon Wilson, an inmate of the Harris County Jail, sued in
December 2017, alleging civil rights violations resulting
from a denial of due process. Wilson, proceeding pro se and
in forma pauperis, sues Cary M. Faden, defense attorney;
Abdul Farukhi, Assistant District Attorney for Fort Bend
County; and the Fort Bend County Sheriffs Department.
threshold issue is whether Wilson's claims should be
dismissed as frivolous.
asserts that Faden has repeatedly ignored his phone calls and
letters for over one year. He states that his criminal trial
was scheduled for June 2016, but Faden is conspiring with the
prosecutor to delay the proceedings. He complains that the
Fort Bend County Sheriff s Department is holding him on an
illegal parole warrant. He claims that as a result, his bond
was forfeited and raised to $300, 000.00.
seeks compensation for his lost job and forfeited bond
federal court has the authority to dismiss an action in which
the plaintiff is proceeding in forma pauperis before service
if the court determines that the action is frivolous or
malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is
frivolous if it lacks an arguable basis in law or fact.
See Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997)). "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." Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
The Claim Based on Ineffective Assistance of
claims for damages for deprivations of constitutional rights
must proceed under 42 U.S.C. § 1983. That statute
requires Wilson to present facts that, ifproven, would show
that he has been deprived of a right secured by the
Constitution or laws of the United States, and that the
deprivation was caused by someone acting under color of state
law. Baker v. McCollan, 443 U.S. 137 (1979). The
conduct of a private person, such as Cary M. Faden, defense
counsel, is not state action under 42 U.S.C. § 1983.
See Briscoe v. LaHue, 460 U.S. 325, 329 (1983).
Wilson's claims against Cary M. Faden, defense counsel,
for ineffective assistance of counsel cannot support a
damages suit under section 1983 because the attorney is not a
state actor. Brooks v. Hughes, 98 F.3d 868, 873 (5th
Cir. 1996) (citing Polk Cnty. v. Dodson, 454 U.S.
312, 324-25 (1981)); Banuelos v. McFarland, 41 F.3d
232, 234 (5th Cir. 1995) (holding that actions of counsel
substitute in prison disciplinary hearing, like actions of
public defender and private attorney, are not actions under
color of state law for purposes of section 1983); Mills
v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th
Cir. 1988) ("private attorneys, even court-appointed
attorneys, are not official state actors, and generally are
not subject to suit under section 1983").
has failed to plead facts showing that he has been deprived
of a right secured by the Constitution or laws of the United
States and that the deprivation was caused by someone acting
under color of state law. Wilson's civil rights claims
against Faden are DISMISSED as frivolous.
The Claim Based on Prosecutorial Misconduct
seeks damages against Abdul Farukhi, an Assistant District
Attorney for Fort Bend County, for conduct in the prosecution
of the criminal case. Absolute immunity precludes his claim.
Prosecutors have absolute immunity from such damages claims.
Beck v. Tex. State Bd. of Dental Examiners, 204 F.3d
629, 637 (5th Cir. 2OOO)(citing Burns v. Reed, 500
U.S. 478, 491 (1991)). Prosecutorial immunity applies to a
prosecutor's actions in initiating a prosecution and in
handling the case through the judicial process. Id.
Prosecutorial immunity extends to activities "intimately
associated with the judicial phase of the criminal
process." Kerr v. Lyford, 171 F.3d 330, 336
(5th Cir. 1999)(quoting Imbler v. Pachtman, 424 U.S.
409, 430 (1976)). The actions Wilson complains of are related
to the judicial process and were undertaken in furtherance of
the attorney's advocacy function in his representation of
the government. Defendant Farukhi is entitled to absolute
immunity from Wilson's suit, and the damages claims
against him are DISMISSED.
The Claim Against the Fort Bend County ...