United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE.
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.
threshold issue is whether Marlow's claims should be
dismissed as frivolous.
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
states that his request for a bond reduction has been denied.
Marlow seeks $500, 000.00 in compensatory damages.
research reveals that Marlow was indicted on the following
charges in the 184th Judicial District Court of Harris
(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.
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.
Claims Against Prosecutors
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