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Marlow v. Ogg

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

April 26, 2019

EDDIE MARLOW, SPN #01226099 Plaintiff,
v.
KIM OGG, Defendant.

          MEMORANDUM AND OPINION

          VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE.

         Eddie Marlow, an inmate of the Harris County Jail ("HCJ"), sued in April 2019, alleging civil rights violations resulting from a denial of due process. Marlow, proceeding pro se and in forma pauperis, sues Kim Ogg, the District Attorney for Harris County.

         The threshold issue is whether Marlow's claims should be dismissed as frivolous.

         I. Marlow's Allegations

         Marlow asserts that he was arrested for assault on a family member. He states that on September 23, 2018, a probable cause hearing was conducted, and his misdemeanor offense was improperly enhanced to a felony offense based on false evidence.

         Marlow states that his request for a bond reduction has been denied. Marlow seeks $500, 000.00 in compensatory damages.

         Online research reveals that Marlow was indicted on the following charges in the 184th Judicial District Court of Harris County, Texas:

(1) assault on a family member with a previous conviction, on September 22, 2018, in Cause Number 160594901010. His next court date is May 3, 2019; and
(2) assault on a family member with a previous conviction, on October 2, 2018, in Cause Number 160711401010. His next court date is May 3, 2019.

         II. Discussion

         A 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. 1997)).

         III. Claims Against Prosecutors

         Marlow seeks damages against Kim Ogg, the Harris County District Attorney, for her conduct in pre-trial proceedings. Liberally construed, Marlow complains that his misdemeanor offense was improperly enhanced to a felony offense. He also complains that his request for bond reduction was improperly denied based on comments from the prosecutor. Absolute immunity precludes his claim. Prosecutors have absolute immunity from such damages claims. Beck v. Tex. State Bd. of Dental Exam 'rs, 204 F.3d 629, 637 (5th Cir. 2000)(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." Kerrv. Lyford, 171 F.3d 330, 336 (5th Cir. 1999)(quoting lmbler v. Pachtman, 424 U.S. 409, 430 (1976)). The actions Marlow complains of are related to the judicial process and were undertaken in furtherance of the attorney's advocacy function in their representation of the government. Kim Ogg is entitled to absolute immunity from Marlow's suit, and the damages claims against Kim Ogg are dismissed.

         IV. ...


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