United States District Court, N.D. Texas, Fort Worth Division
NORMAN L. AGNEW, TDCJ No. 02172850, Plaintiff,
ABE FACTOR and CAMPBELL, et al. Defendants.
OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C.
§§ 1915A & 1915(E)(2)(B)
R. MEANS, UNITED STATES DISTRICT JUDGE
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.
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. (Id. (doc. 34) at 3, 15-25.)
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.)
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.)
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.)
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.)
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.)
RELATED CIVIL SUITS
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).
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).
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 §
SCREENING UNDER § 1915A and ...