United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORTS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
for consideration the reports 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 April 18, 2019, the reports of the Magistrate Judge
(Dkts. #46; #47) were entered containing proposed findings of
fact and recommendations that: (1) Defendants Collin County
Assistant District Attorneys Melanie Wiesman and Ashley
Keil's Motion to Dismiss Pursuant to Fed.R.Civ.P.
12(b)(6) (Dkt. #13), Defendant Ken Paxton's Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P.
12(b)(6) (Dkt. #25), and Defendant Richard Chambers'
Motion to Dismiss (Dkt. #34) each be granted; (2)
Plaintiff's “Objection to; Defendant[']s
Assertion of the Qualified Immunity Defense and Sanctions/And
Second Motion for Default Judgment Rule 12, and Rule 55(B)(1)
and 5 U.S.C. 552(A)” (Dkt. #36) be denied; and (3)
Defendants Collin County Assistant District Attorneys Melanie
Wiesman and Ashley Keil's Motion for Sanctions and to
Declare Plaintiff a Vexatious Litigant (Dkt. #42) be denied.
Having received the reports of the Magistrate Judge, having
considered Plaintiff's Objection (Dkt. #49), and having
conducted a de novo review, the Court is of the opinion that
the Magistrate Judge's reports should be adopted.
August 6, 2018, Plaintiff filed the instant suit against
Defendants Texas Attorney General Ken Paxton, Assistant
District Attorney Melanie Wiesman, Assistant District
Attorney Ashley Keil, and Wylie Police Officer Richard
Chambers ("Officers Chambers"), asserting claims
arising from his state criminal proceedings (Dkt. #1). After
a traffic stop and consented-to search of his vehicle which
yielded a small baggie of cocaine, on April 18, 2017,
Plaintiff was arrested by Officer Chambers (Dkt. #4-1 at p.
3). In July 2017, Plaintiff was indicted for felony
possession of a controlled substance under one gram (Dkt.
#13-2). State of Texas v. Tony Lamar Vann, Cause No.
401-83037- 2017. In the state criminal proceedings, the
Government was represented by Collin County Assistant
District Attorneys Melanie Wiesman and Ashley Keil. In his
criminal proceedings, Plaintiff filed a Motion to Dismiss
(Dkt. #4-1 at p. 1) and a Motion to Quash (Dkt. #4-1 at p.
4). Plaintiff entered a guilty plea on May 23, 2018 (Dkt.
#13-3), and is currently fulfilling a period of probation for
filed his Amended Complaint on September 6, 2018, seeking
compensatory and punitive damages as relief for alleged
violations of his civil rights under § 1983 and for
“First Amendment Retaliation” (Dkt. #4 at pp. 1,
3). Plaintiff alleges he was wrongfully convicted (Dkt. #1).
Specifically, Plaintiff asserts that Officer Chambers
“planted drugs in Plaintiff[']s vehicle. In
retaliation for trying to get BBQ pits for free, ” and
because he filed various pleadings in the state criminal
proceeding, “this made the D.A. [Melanie] Wiesman [and]
Ashley [Keil] angry!!!...in retaliation[, ] they stopped the
motion hearing on May 23, 2018[, ] threatening Plaintiff with
a 20 year sentence” (Dkt. #4 at p. 3) (emphasis in
original). Plaintiff's Amended Complaint does not contain
any mention of AG Paxton, beyond the style of the case.
April 18, 2019, the Magistrate Judge entered two Reports and
Recommendations, the first recommending that Defendants'
Motions to Dismiss be granted, and Plaintiff's Motion for
Default Judgment be denied (Dkt. #46); and the second
recommending that Defendants Collin County Assistant District
Attorneys Melanie Wiesman and Ashley Keil's Motion for
Sanctions and to Declare Plaintiff a Vexatious Litigant be
denied (Dkt. #47). The first report recommending dismissal of
Plaintiff's claims specifically found that: (1) the
Eleventh Amendment bars Plaintiff's claims under §
1983 against Defendants Wiesman, Keil, and AG Paxton in their
official capacities; (2) the entirety of Plaintiff's
claims under § 1983 are barred by Heck v.
Humphrey; (3) Plaintiff's claims under § 1983
against Defendants Wiesman and Keil are barred by
prosecutorial immunity; (4) as Plaintiff does not allege any
personal involvement by AG Paxton, his claims against AG
Paxton in his individual capacity should be dismissed under
Rule 12(b)(6); and (5) Plaintiff cannot prove a
constitutional violation in connection with Officer
Chambers's conduct. Plaintiff filed an “Objection
to All Informations [sic] in Report and Recommendation of
United States Magistrate Judge” (Dkt. #49).
TO REPORTS AND RECOMMENDATIONS
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). Plaintiff asserts two objections
to the first report recommending dismissal of his claims:
first, the report failed to consider Plaintiff's
assertion that “all part[ies] in above cause failed to
timely object to. . . Officer Richard Chambers['s] body
camera showing him planting drugs in Plaintiff['s]
vehicle”; and second, “all parties have not
affirmatively consent[ed] to a Magistrate Judge['s]
jurisdiction” (Dkt. #49). Neither Plaintiff nor
Defendants object to the second report recommending
Defendants' request for sanctions be denied. The Court
therefore adopts such recommendation, and considers herein
Plaintiff's enumerated objections.
argues that the report specifically failed to consider
Plaintiff's “Objection to All Pleading of
Defendants for Party's Failure to Oppose Video Certified
Copy #9347 Dis 1 of 3 Officer Richard Chambers Body Camera
Local Rule CV-7(D) & (E) Rule 12 [sic] Objections,
” wherein Plaintiff asserts that because Defendants did
not respond to the body camera footage, “judgment
belongs to Plaintiff as a matter of law” (Dkt. #43).
The report clearly considered Plaintiff's assertion that
Officer Chambers planted contraband in Plaintiff's
vehicle. Indeed, the report, in finding Plaintiff's
claims barred by Heck v. Humphrey, 512 U.S. 477
Plaintiff contends that, in violation of Plaintiff's
constitutional rights, Officer Chambers planted the
contraband in his vehicle . . . .The entirety of
Plaintiff's claims revolves around his averment that he
has been wrongfully convicted of this crime. . . a judgment
in favor of Plaintiff would necessarily imply the invalidity
of his conviction (i.e., that he was the victim of Officer
Chambers's scheme to plant the contraband in his vehicle,
resulting in his conviction, and the prosecutors ignored the
allegedly illegal search and threatened him with a hefty
sentence when he defended his case).. . . . Plaintiff's
conviction has not been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal, or
called into question by a federal court's issuance of a
writ of habeas corpus. . . .Thus, despite Plaintiff's
averments to the contrary, it is clear that Plaintiff's
claims necessarily seek to and would undermine the validity
of his conviction. “Under the holding in Heck,
[P]laintiff may not employ this § 1983 action to
collaterally attack any of those state criminal
(Dkt. #46 at pp. 11-13). A judgment in Plaintiff's favor
herein, i.e., finding that Officer Chambers retaliated
against Plaintiff by planting the drugs underlying his
conviction or otherwise, would necessarily imply the
invalidity of his conviction. Plaintiff's claims are
barred by Heck v. Humphrey. See e.g., Conlan v.
King, et al., 682 Fed.Appx. 345 (5th Cir. 2017);
Villegas v. Galloway, et al., 458 Fed.Appx.
334, 337 (5th Cir. 2012). Plaintiff's objection is