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Agnew v. Factor

United States District Court, N.D. Texas, Fort Worth Division

July 9, 2019

NORMAN L. AGNEW, TDCJ No. 02172850, Plaintiff,
v.
ABE FACTOR and CAMPBELL, et al. Defendants.

          OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A & 1915(E)(2)(B)

          TERRY R. MEANS, UNITED STATES DISTRICT JUDGE

         This case is before the Court for review of pro-se inmate/plaintiff Norman L. Agnew's pleading under the screening provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B). After review and consideration of Plaintiff's claims, the Court determines that all claims must be dismissed under authority of these provisions.

         I. BACKGROUND/PLEADING

         In this suit, after he initially filed several pleadings, plaintiff Agnew re-filed a form civil-rights complaint with attachment pages in accordance with this Court's order to incorporate all of his claims into one final amended complaint. (Final Am. Compl. (doc.34); Order Resolving Motions and Order for Plaintiff to File a Final Amended Complaint (doc. 30).) Thus, the live pleading subject to review is Agnew's form final amended civil-rights complaint with attachment pages. (Final Am. Compl. (Doc. 34).) The final amended complaint names as defendants attorneys Abe Factor and Brian Eppes; Mansfield police officers Barry Moore, J.C. Moran, D. Burden, and all Mansfield officers involved; Sharen Wilson, district attorney, Tarrant County, Texas; and Scott Wisch, judge, 372nd Judicial District Court, Tarrant County, Texas.[1] (Id. (doc. 34) at 3, 15-25.)

         Agnew complains of the actions of Mansfield police officers in arresting him and recites generally that he was the subject of racial profiling and was wrongfully arrested. (Id. (doc. 34) at 3.) Agnew acknowledges that he was initially arrested on an arrest-warrant affidavit for charges of injury to a child and assault on a family member. (Id. (doc. 34) at 15.) Agnew contends that the arrest warrant for the injury-to-a-child charge lacked probable cause, and he alleges the later indictment included insufficient information. (Id.) He alleges this resulted in his unlawful seizure in violation of the Fourth Amendment. (Id. (doc. 34) at 15-16.)

         Although Agnew includes challenges to an “enclosed arrest affidavit, ” he did not include that document in the final amended complaint. Agnew did, however, file a copy of the “Arrest Warrant Affidavit” as an exhibit to a prior pleading, and the Court can thus review and take judicial notice of that copy previously filed in this case. (Am. Compl. (Doc. 25) at 5-7.) That document reveals that the affidavit was prepared by Officer Barry Moore based upon information provided in a written report by Officer J. C. Moran. (Id.). In support of a charge brought against Agnew for injury to a child in violation of Texas Penal Code § 22.04, the document recites that Agnew threw his eight year old daughter Jaya Agnew across the floor causing her back to hurt. (Id.) The document also sets forth facts in support of a separate misdemeanor charge of assault causing bodily injury/family violence for actions taken by Agnew against his wife Bridgette Agnew. (Id.) Detective Moore's narrative reveals that there was sufficient information to issue a warrant on each of these charges. (Id. at 7-9.)

         In the final amended complaint, Agnew complains of the two officers' actions in preparing the affidavit and arrest warrant in response to contact from Agnew's wife. (Final Am. Compl (doc. 34) at 17-18.) Agnew contends that he was subjected to violations of his rights to due process of law, equal protection of law, and his right to “tell my side of the story” in violation of the First Amendment. (Id. at 18.) He also alleges that he was subjected to an illegal custodial interrogation in violation of Miranda v. Arizona, 396 U.S. 868 (1969), and was not afforded meaningful access to counsel during this investigation stage. (Id. at 19-20.) Agnew further contends that he was not given adequate notice of the charges to adequately prepare his defense. (Id. at 21.)

         Agnew also recites claims of an unlawful arrest procedure, apparently arising from officers' detention of him on charges that he was in violation of a protective order regarding his proximity to his wife's house. (Id. at 22.) He alleges the officers did not have reasonable cause to arrest him, but acknowledges that after his detention in the Mansfield jail for a few hours, he was charged with unlawful possession of a firearm by a felon in case number 1434387 and with theft of a firearm in case number 1434386. (Id. at 22-23.) With regard to these two charges, Agnew contends that the Mansfield police officers would not produce evidence to him and later destroyed evidence. (Id. at 24.) Agnew claims that his arrest on these two charges was also not supported by a sufficient arrest warrant in that probable cause was lacking. (Id. at 24.)

         Agnew seeks relief in this civil suit under 42 U.S.C. § 1983 in the form of a finding by this Court that he was wrongfully convicted and subjected to wrongful enhancements to his charges, along with monetary damages from his attorneys and from the officers he alleges violated his constitutional rights. (Id. at 4, 25.)

         II. RELATED CIVIL SUITS

         Relevant to the Court's review of this civil-rights case is the fact that Agnew also filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in this district, challenging the convictions that arose out of the same conduct made the basis of this civil suit. See Agnew v. Waybourn, No. 4:17-CV-793-Y (N.D. Tex. Aug. 9, 2018 Order and Judgment). This Court takes judicial notice of its own records in this habeas-corpus case. See Fed.R.Evid. 201(b)(2) and (c)(1).

         At the time of the entry of judgment in that case, this Court determined that Agnew's pre-trial claims brought under § 2241 were moot because he had by then pleaded guilty to and was convicted of four felony charges (injury to a child, theft of a firearm, unlawful possession of a firearm by a felon, and bail jumping), and one misdemeanor charge (assault causing bodily injury to a family member). (Mot. Dismiss, Agnew v. Waybourn, No. 4:17-CV-793-Y (doc. 8) Exs. at 8, 21, 34, 47, 60). Records before the Court in that proceeding revealed that on December 11, 2017, Agnew pleaded guilty to these charges and was sentenced to a fifteen-year term of confinement for each felony charge, and to one hundred and eighty days for the misdemeanor charge. (Mot. Dismiss, Agnew v. Waybourn, No. 4:17-CV-793-Y (doc. 8) Exs. at 8-11, 21-24, 34-37, 47-50, 61-63).

         Closer review of the records of Agnew's convictions in that case show that they are the exact same charges he complains of in this civil-rights case. In this regard the Court notes: case number 1429034D is the judgment of conviction for injury to a child causing bodily injury in violation of Penal Code § 22.04(f) for Agnew's actions against daughter Jaya Agnew; case number 1433452D is the judgment of conviction for assault causing bodily injury to a family member in violation of Penal Code § 22.01(a)(1) for Agnew's actions against wife Bridgette Agnew; case number 1434386D is the judgment of conviction for theft of a firearm in violation of Penal Code § 31.03(e)(4)(C); case number 1434387D is the judgment of conviction for unlawful possession of a firearm by a felon in violation of Penal Code § 46.04(a); and case number 1475324D is the judgment of conviction for bail jumping in violation of Penal Code § 38.10(f).[2](Id.)

         III. SCREENING UNDER ยง 1915A and ...


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