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Bailey v. Collin County

United States District Court, E.D. Texas, Sherman Division

May 8, 2018

PAUL CLARENCE BAILEY
v.
COLLIN COUNTY D.A. GREG WILLIS, ET AL.

          Nowak Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On January 11, 2018, the report of the Magistrate Judge (Dkt. #67) was entered containing proposed findings of fact and recommendations that Frisco Police Department's Rule 12(b)(6) Motion to Dismiss (Dkt. #34), Collin County District Attorney Greg Willis and Assistant District Attorney Lindsey Wynne's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. #38), and Greg Gibbs and Mark Ledbetter's Rule 12(b)(6) Motion to Dismiss (Dkt. #40) be granted, that Defendants 366th District Court Judge Ray Wheless, the Fifth Court of Appeals Justices, the Court of Criminal Appeals Justices, Governor Greg Abbott, and Attorney General Ken Paxton's Motion to Dismiss Complaint on the Basis of Judicial, Qualified, Eleventh Amendment and Sovereign Immunity (Dkt. #33) be granted in part and denied in part, and that Greg Gibbs and Mark Ledbetter's Motion for More Definite Statement Subject to their Motion to Dismiss (Dkt. #41) be denied as moot. Having received the report and recommendation of the Magistrate Judge (Dkt. #67), having considered Plaintiff's objections (Dkt. #69), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report should be adopted.

         BACKGROUND

         The facts in this case have been set forth in detail by the Magistrate Judge, and need not be duplicated in their entirety herein. On June 28, 2009, Defendant Frisco Police Department (“FPD”) received an emergency call that Plaintiff Paul Clarence Bailey was suicidal and had a weapon. FPD was dispatched to Plaintiff's residence; Plaintiff fired a weapon. After several hours, Plaintiff surrendered to FPD officers. On April 26, 2012, Plaintiff was convicted of aggravated assault with a deadly weapon and sentenced to five years' imprisonment. Bailey v. State, No. 05-12-00634-CR, 2013 WL 3974047, at *1 (Tex. App.-Dallas, Aug. 2, 2013, no pet.). On August 2, 2013, the state appellate court affirmed Plaintiff's conviction.

         On April 20, 2017, Plaintiff filed the instant suit against Defendants Prosecutors Willis and Wynne, Judge Wheless, Attorneys Gibbs and Ledbetter, the Court of Appeals Justices, the Court of Criminal Appeals Justices, FPD, Governor Greg Abbott (as former Attorney General), and Attorney General Ken Paxton. Relevant herein, in the underlying criminal case, 366th District Judge Ray Wheless presided, Attorneys Greg Gibbs and Mark Ledbetter represented Plaintiff and Collin County District Attorney Greg Willis and Assistant District Attorney Lindsey Wynne prosecuted Plaintiff. Bailey, 2013 WL 3974047, at *1.

         By and through his suit, Plaintiff seeks “declaratory, injunctive and other appropriate relief” for Defendants' violations of his “first, second, forth [sic], fifth, sixth, ninth, and fourteenth Amendment[]” rights (Dkt. #1 at p. 1). Specifically, Plaintiff requests “a jury trial that will allow Plaintiff AND the defendants a venue that will make ALL accountable to a jury of their peers” because “[t]he defendants have utilized their formidable skills as legal professionals to prove that they can readily manipulate the system and procure a criminal conviction upon a man THAT THEY KNEW, ALL ALONG, WAS INNOCENT!” (Dkt. #1 at p. 4) (emphasis in original). In addition to Plaintiff's civil rights claims, Plaintiff asserts six state law claims.

         On September 8, 2017, Judge Wheless, the Fifth Court of Appeals Justices, the Court of Criminal Appeals Justices, Governor Abbott, and AG Paxton filed their Motion to Dismiss Complaint on the Basis of Judicial, Qualified, Eleventh Amendment and Sovereign Immunity (Dkt. #33). On September 11, 2017, FPD filed its Rule 12(b)(6) Motion to Dismiss (Dkt. #34). On September 14, 2017, Prosecutors Willis and Wynne filed their Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. #38). On September 15, 2017, Attorneys Gibbs and Ledbetter filed their Rule 12(b)(6) and Rule 12(b)(1) Motions to Dismiss (Dkt. #40). On September 15, 2017, Attorneys Gibbs and Ledbetter also filed a Motion for More Definite Statement (Dkt. #41).

         Upon consideration of the Motions and numerous responsive pleadings, the Magistrate Judge entered a report (Dkt. #67), recommending that: (1) FPD's Rule 12(b)(6) Motion to Dismiss (Dkt. #34), Prosecutors Willis and Wynne's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. #38), and Attorneys Gibbs and Ledbetter's Rule 12(b)(6) Motion to Dismiss (Dkt. #40) be granted; (2) Defendants Judge Wheless, the Fifth Court of Appeals Justices, the Court of Criminal Appeals Justices, Governor Abbott, and AG Paxton's Motion to Dismiss Complaint on the Basis of Judicial, Qualified, Eleventh Amendment and Sovereign Immunity (Dkt. #33) be granted in part as to Plaintiff's claims against Judge Wheless, the Fifth Court of Appeals Justices, the Court of Criminal Appeals Justices, and AG Paxton; and denied in part as moot, based on Plaintiff withdrawing his claims against Governor Abbott; and (3) Gibbs and Ledbetter's Motion for More Definite Statement Subject to their Motion to Dismiss (Dkt. #41) be denied as moot. Specifically, the Magistrate Judge recommended dismissal of Plaintiff's claims under § 1983: (1) against the Court of Appeals Justices, the Court of Criminal Appeals Justices, Judge Wheless, Attorney General Ken Paxton, and Prosecutors Willis and Wynne in their official capacities as barred by Eleventh Amendment immunity; (2) as barred by Heck v. Humphrey; (3) as time-barred; (4) against FPD because FPD is a non-jural entity, incapable of being sued; (5) against the City of Frisco for Plaintiff's failure to allege any City policy caused any alleged injury to Plaintiff; (6) against Attorneys Gibbs and Ledbetter as Plaintiff's allegations fail to establish either individual as a state actor; (7) against Judge Wheless, the Court of Appeals Justices, and the Court of Criminal Appeals Justices as barred by judicial immunity; (8) against Prosecutors Willis and Wynne as barred by prosecutorial immunity; and (9) for the failure to specify the personal involvement of each defendant (Dkt. #67 at p. 27). Furthermore, the Magistrate Judge recommended dismissal of Plaintiff's state law claims: (1) as time-barred; (2) against FPD, Attorney General Paxton, Prosecutors Wynne and Willis, Judge Wheless, the Court of Appeals Justices, and the Court of Criminal Appeals Justices as barred by governmental immunity; (3) against Attorney General Paxton as barred by official immunity; (4) against Prosecutors Wynne and Willis as barred by prosecutorial immunity; and (5) against Judge Wheless, the Court of Appeals Justices and the Court of Criminal Appeals Justices as barred by judicial immunity (Dkt. #67 at pp. 33-34). Finally, the Magistrate Judge recommended that Plaintiff be denied leave to amend before dismissal because “Plaintiff cannot establish that his 2012 conviction for aggravated assault has been reversed, expunged, invalidated, or otherwise called into question, ” and therefore, his claims are fatally infirm (Dkt. #67 at pp. 34-35).

         Plaintiff filed objections to the report on January 26, 2018 (Dkt. #69). On January 30, 2018 Prosecutors Willis and Wynne filed a response (Dkt. #70). FPD responded on February 7, 2018 (Dkt. #71). On the same day, Plaintiff filed a reply to Willis and Wynne's response (Dkt. #73). On February 9, 2018, Attorneys Gibbs and Ledbetter filed a response (Dkt. #74). Plaintiff filed a response to FPD's response on February 12, 2018 (Dkt. #75).

         OBJECTIONS

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). Throughout his objections, Plaintiff makes multiple nonsensical arguments, namely citing passages of the Bible and quotations from Adolf Hitler, as authority for his contention that he is entitled to relief in this action. Broadly construing his filings, Plaintiff objects to the Magistrate Judge's recommendation that the Court dismiss his claims prior to allowing him an opportunity to amend or to conduct discovery and/or for failing to appoint him counsel. Plaintiff also asserts that: (1) the Court has erroneously ignored Plaintiff's wrongful and fraudulent conviction and his actual innocence; and (2) the Court erred by not applying the statute of limitations period under Texas Code of Criminal Procedure § 12.01. The Court addresses each assertion in turn.

         1. Leave to Amend

         As a threshold matter, Plaintiff asserts that he should be provided an opportunity to amend before the Court dismisses his claims.[1] However, because Plaintiff has failed to establish that his claims are not ...


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