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Kennedy v. Harmon

United States District Court, S.D. Texas, Houston Division

April 12, 2018




         Pending and referred are Motions to Dismiss filed by each Defendant in this case (Document Nos. 7, 8, 9[1] and 13). Having considered the claims and allegations of Plaintiff, who is proceeding pro se, the Motions to Dismiss, Plaintiffs responses to those motions, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendants' Motions to Dismiss (Document Nos. 7, 8, 9 and 13) be GRANTED and all Plaintiffs claims in this case be DISMISSED WITH PREJUDICE.


         This case was filed by Plaintiff Crizzeer Kennedy pro se ("Kennedy"); as a pro se plaintiff, his pleadings will be liberally construed. Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017). In his Complaint, filed on June 29, 2017, against Judge William Harmon, Attorney Brian Coyne, Clerk Kaye Jameson, and the Houston Police Department, Kennedy complains about a series of events that commenced in 1980, with his "warrantless arrest" lacking in probable cause and based on alleged racial profiling, and essentially ended in 1985 or 1986 when his conviction for possession of an illegal weapon was affirmed and he did not further pursue any state post-conviction relief. Kennedy's claims in this case, which he premises, on the one hand, on 42 U.S.C. § 1983, and on the other hand, as being a post-conviction writ of habeas corpus, arise out of his arrest in 1980, his guilty plea which resulted in a ten year term of deferred adjudication, the revocation of his probation in 1984 and the resultant sentence of three years incarceration, and his purported efforts from 1984 through 1986, to challenge that conviction with state post-conviction applications for writ of habeas corpus. With respect to Defendant Houston Police Department, Kennedy maintains that he was unconstitutionally arrested without a warrant and based solely on his race. As for Defendant Judge William Harmon, Kennedy alleges that he "lied" about the pendency of Kennedy's state application for writ of habeas corpus. Defendant Brian Coyne, Kennedy alleges, was his attorney when he pled guilty to the weapons offense in 1980 and was ineffective for failing to challenge his arrest as not being based on probable cause. Finally, Kennedy alleges that Defendant Kaye Jameson, the court reporter at his probation revocation hearing, did not preserve the record of that hearing. In the "Relief Sought" section of his Complaint, Kennedy alleges as somewhat a summary, the following:

Thus, I would allege that I have been victimized by ineffective assistance of counsel on the original case by Brian Coyne, the probation hearing by Johnny Gill, and the appellate procedures by Barbara Burnett. Additionally, I have been denied my right to be heard for over 30 years by two judges in the 178th District Court which resulted in not being able to exhaust state remedies. Moreover, I have been egregiously violated on my transcript testimony during the probation hearing by either the assistant district attorney or the clerk of the court for erasing my 20-day violation statement to the visiting judge. More importantly, I was originally violated by being racially profiled in 1980 by an illegal warrantless search of my black and green briefcase and the convenient loss of the police report by the Houston Police Department. I would like to be found innocent of this crime because I believe wholly that there were concerted efforts by authorities of Harris County while acting under color of law to keep me from getting before judge Carl O. Bue in 1985 who heavy-handedly ruled consistently against Harris County for violations of the 24-hour magistrate to determine a neutral determination of probable cause.

Complaint (Document No. 1) at 5-6.

         Each Defendant filed a Motion to Dismiss Kennedy's claims. Defendant Judge William Harmon maintains in his Motion to Dismiss (Document No. 7) that he has absolute judicial immunity, that Kennedy has not stated a claim against him for which relief is available because he cannot find Kennedy "innocent, " and that Kennedy cannot maintain a viable federal habeas corpus action to challenge his weapons conviction from 1984 against anyone in any event because he is not "in custody, " which is a jurisdiction requirement for habeas corpus relief. Defendant Houston Police Department argues in its Motion to Dismiss (Document No. 8) that it lacks the capacity to be sued, that Kennedy's claims are barred by the applicable statute of limitations, and that Kennedy cannot state a viable § 1983 claim related to his arrest in 1980 because the weapon charge was never dismissed in his favor, as is required under Heck v. Humphrey, 512 U.S. 477 (1994) for a viable damages claim under § 1983. Defendants Coyne and Jameson seek dismissal of Kennedy's claim(s) against them (Document Nos. 9 & 13) for failure to state a claim and as barred by the applicable statute of limitations.

         § 1983 Claims

         Kennedy's claims premised on 42 U.S.C. § 1983 are all subject to dismissal.

         42 U.S.C. § 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress...." "Rather than creating substantive rights, § 1983 simply provides a remedy for the rights that it designates." Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989), cert, denied, 493 U.S.1019 (1990). To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting "under color of state law". See Bass v. Parkwwod Hosp., l8OF.3d234, 24l (5th Cir. 1999); Gomez v. Toledo, 446 U.S. 635, 340 (1980) ("By the plain terms of § 1983, two-and only two-allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.").

         Here, Defendant Judge William Harmon has, as he has asserted, absolute judicial immunity for any action he took as the district judge of the 178th District Court of Harris County, Texas. As set forth by the Fifth Circuit Court of Appeals in Ballard v. Wall, 413 F.3d 510, 515 (5 th Cir. 2005):

Judicial immunity is an immunity from suit and not just from the ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). "Although unfairness and injustice to a litigant may result on occasion, ' it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.' " Id. at 10, 112 S.Ct. 286 (citation omitted). Judicial immunity is not overcome by allegations of bad faith or malice and "applies even when the judge is accused of acting maliciously and corruptly." Id. at 11, 112 S.Ct. 286 (internal quotation marks and citation omitted) (emphasis added). "It is the Judge's actions alone, not intent, that we must consider." Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993). Notwithstanding the aforementioned, judicial immunity can be overcome in two sets of circumstances: (1) "a judge is not immune from liability for nonjudicial actions, i. e., actions not taken in the judge's judicial capacity"; and (2) "a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles, 502 U.S. at 11-12, 112 S.Ct. 286 (citations omitted).

         Because Kennedy asserts in his Complaint that Defendant Harmon was acting as a judge when he misrepresented the status of Kennedy's state application for writ of habeas corpus, and because it was within his purview as the judge of the 178th District Court of Harris County, Texas, to respond to state applications for writ of habeas corpus, Defendant Harmon has absolute judicial immunity from the claims Kennedy asserts against him.

         As for Defendant Houston Police Department, as argued in its Motion to Dismiss, it does not have the capacity to sue or be sued. That is because it is a subdivision of the City of Houston, see Houston Municipal Code Article II. - POLICE DEPARTMENT § 34-21, and has no separate legal existence. Darby v. Pasadena Police Dep't,939 F.2d 311, 313 (5th Cir. l99l)("In order for a plaintiff to sue a city department, it must 'enjoy a separate legal existence.'"). Kennedy's claims against the Houston Police Department are therefore subject to dismissal on that basis alone. Seee.g., Twine v. City of Houston, No. H-08-1234, 2008 WL 4240157 *3 (S.D. Tex. Sept. 10, 2008) (Houston Police Department dismissing claims against Houiston Police Department for failure to state a claim). ...

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