# Mosley v. Bill E. Waybourn

> District Court, N.D. Texas · January 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10452258

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** January 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10452258

## How later opinions describe it (automated extraction)

- finding district court did not abuse its discretion in dismissing the complaint as frivolous given that the damages claim raised therein was Heck-barred and thus had no arguable merit

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

BRANDI R. MOSLEY,
INSTITUTIONAL ID NO. 2415074,

Plaintiff,

v. No. 4:22-cv-0795-P

SHERIFF BILL E. WAYBOURN,
ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER
This civil-rights action stems from a traffic stop that led to Plaintiff
Brandi R. Mosely’s state drug convictions.1 Mosley claims that
Defendants violated his constitutional rights during his arrest and
subsequent state criminal proceedings. Proceeding pro se and in forma
pauperis (“IFP”), Mosely seeks monetary damages and injunctive relief
under 42 U.S.C. § 1983. For the following reasons, the Court
DISMISSES Mosley’s Amended Complaint.
LEGAL STANDARDS
A. Nature of Claims
Before a district court adjudicates the merits of a pro se prisoner’s
claim, it should review and decipher the underlying nature and essence
of the claim, regardless of the title affixed to the suit. See Odom v. West,
174 F.3d 198, 1999 WL 153008, at *1 (5th Cir. 1999) (citing United
States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983)). A § 1983 action is
the appropriate remedy for recovering damages for illegal state action.
Taylor v. Cass Cnty. Dist. Ct., 178 F.3d 1291, 1999 WL 236119, at *1
(5th Cir. 1999) (citing Heck v. Humphrey, 512 U.S. 477 (1994)). The writ
of habeas corpus is the appropriate federal remedy for a state prisoner
challenging the fact or duration of his confinement. See Preiser v.

1According to the “Inmate Information Details” found on the Texas Department of
Criminal Justice’s website, Mosley was convicted in Tarrant County, Texas on two
Rodriguez, 411 U.S. 475, 500 (1973); see also Deters v. Collins, 985 F.2d
789, 792–96 (5th Cir. 1993). If a complaint contains both habeas and §
1983 claims, the district court should, if practicable, separate the § 1983
claims from the habeas claims. See Patton v. Jefferson Corr. Ctr., 136
F.3d 458, 463 (5th Cir. 1998).
B. 28 U.S.C. § 1915
A district court must dismiss a prisoner’s IFP complaint if, at any
time, it determines that the action is frivolous or malicious; fails to state
a claim on which relief may be granted; or seeks monetary relief against
a defendant that is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B); see also Norwood v. O’Hare, 404 F. App’x 923, 924 (5th
Cir. 2010).
1. Frivolity
A complaint is frivolous if it lacks an arguable basis in law or fact.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). “A complaint lacks
an arguable basis in law if it is based on an indisputable meritless legal
theory, such as if the complaint alleges the violation of a legal interest
which clearly does not exist.” Id. (quoting McCormick v. Stalder, 105
F.3d 1059, 1061 (5th Cir. 1997)).
2. Failure to State a Claim
Dismissals for failure to state a claim under § 1915(e) are reviewed
de novo, using the same standard applicable to dismissals under Federal
Rule of Civil Procedure 12(b)(6). See Hale v. King, 642 F.3d 492, 497 (5th
Cir. 2011) (citing Praylor v. Tex. Dep’t of Crim. Just., 430 F.3d 1208,
1209 (5th Cir. 2005)). Under the 12(b)(6) standard, all well-pleaded facts
are viewed in the light most favorable to the plaintiff, but the plaintiff
must allege facts that support each element of the cause of action in
order to state a valid claim. See City of Clinton, Ark. v. Pilgrim’s Pride
Corp., 632 F.3d 148, 154–55 (5th Cir. 2010) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough
to raise a right to relief above the speculative level.”)). The court does
not accept as true “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” City of Clinton, Ark.,
632 F.3d at 153 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
C. 42 U.S.C. § 1983
To state a claim for relief under 42 U.S.C. § 1983, the plaintiff must
allege that (1) some person has deprived him of a federal right; and (2)
that the person acted under color of state or territorial law. See Arnold
v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (citing Gomez v. Toledo,
446 U.S. 635, 640 (1980)).
1. State Actor
Private individuals generally are not considered to act under color of
state law. See Ballard v. Wall, 413 F.3d 510, 518 (5th Cir. 2005). A
defense attorney, whether privately retained or appointed by the court,
when exercising his independent professional judgment in a criminal
proceeding, is not a state actor for purposes of § 1983. Small v. Dallas
Cnty., Tex., 170 F. App’x 943, 944 (5th Cir. 2006) (citing Hudson v.
Hughes, 98 F.3d 868, 873 (5th Cir. 1996)); see Mills v. Criminal Dist.
Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988).
2. The Heck Doctrine
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States
Supreme Court considered the effect of a criminal conviction on a
plaintiff’s § 1983 claim. Thomas v. Pohlmann, 681 F. App’x 401, 406 (5th
Cir. 2017) (citing Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)). The
Heck court held that a plaintiff is not permitted to use a § 1983 action to
challenge the validity of his conviction or sentence unless he
demonstrates that the conviction or sentence has been reversed or
invalidated. Id. The Supreme Court imposed this requirement on § 1983
plaintiffs to avoid collateral attacks by plaintiffs on convictions that are
still outstanding. Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996)
(citing Heck, 512 U.S. at 487)). Thus, when a defendant who has been
convicted of a crime brings a § 1983 claim, “the district court must first
consider whether a judgment in favor of the plaintiff on his § 1983 claim
would necessarily imply the invalidity of his conviction or sentence.” See
Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008) (quoting Heck, 512
U.S. at 487)). If so, the claim is barred unless the plaintiff proves that
his conviction or sentence “has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Id.
3. Absolute Immunity
The doctrine of absolute immunity denies a person whose federal
rights have been violated by a government official from obtaining any
type of remedy, regardless of the conduct. Beck v. Texas State Bd. of
Dental Exam’rs, 204 F.3d 629, 634 (5th Cir. 2000). Because absolute
immunity is an immunity from suit rather than a mere defense to
liability, it is appropriate for district courts to resolve the question of
absolute immunity before reaching the Heck analysis when feasible. See
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994) (citing Mitchell v.
Forsyth, 472 U.S. 511, 525 (1985)). If a defendant is dismissed on
absolute immunity grounds, it becomes clear that the § 1983 plaintiff
will never have a viable claim against the defendant based on the
particular facts alleged, even if the plaintiff is a state prisoner who
eventually satisfies the precondition to a valid § 1983 claim under Heck.
Boyd, 31 F.3d at 284.
Criminal prosecutors enjoy absolute immunity from claims for
damages asserted under § 1983 for actions taken in the presentation of
a state’s case. Boyd, 31 F.3d at 285 (citing Graves, 1 F.3d at 318).
Prosecutorial immunity applies to the prosecutor’s actions in initiating
the prosecution and in carrying the case through the judicial process. Id.
This means that prosecutors are absolutely immune with respect to
activities that are “intimately associated with the judicial phase of the
criminal process.” See Cousin v. Small, 325 F.3d 627, 631-32 (5th Cir.
2003) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Conduct
falling within this category is not limited only to the act of initiation
itself and to conduct occurring in the courtroom, but instead includes all
action which occur in the course of the prosecutor’s role as an advocate
for the State. See Cousin, 325 F.3d 632 (citations omitted). Moreover,
absolute immunity shelters prosecutors even when they act
“maliciously, wantonly, or negligently.” Rykers v. Alford, 832 F.2d 895,
897 (5th Cir. 1987) (quoting Morison v. City of Baton Rouge, 761 F.2d
242, 248 (5th Cir. 1985)).
ANALYSIS
After reviewing Mosley’s Amended Complaint and Answers to the
Court’s Questionnaire, the Court concludes that he raises both habeas
and § 1983 claims in this action. The Court will address each category
below.
A. Habeas Claims
Mosely filed his Amended Complaint on September 15, 2022. At that
time, he was a pretrial detainee confined in Tarrant County Jail, where
he was presumably awaiting trial on the possession charges. Eight days
later, he was convicted. Mosley seeks to have the “charges dropped.” See
ECF No. 5 at 4.
To the extent that Mosley is challenging legality of his pretrial
detention and asking the Court to interfere in his state criminal
proceedings, the Court concludes that his claim is habeas in nature and
not cognizable under § 1983. See Brown v. Estelle, 530 F.2d 1280, 1282–
84 (5th Cir. 1976) (citing Braden v. 30th Judicial Circuit Ct. of Kentucky,
410 U.S. 484 (1973)). Moreover, the Court concludes that such pretrial
habeas claims have been rendered moot by his conviction. See Yohey v.
Collins, 985 F.2d 222, 229 (5th Cir. 1993) (citing Fassler v. United States,
858 F.2d 1016, 1018 (5th Cir. 1988)).
To the extent that Mosely is challenging the fact and legality of his
current detention on the ground that his state conviction was unlawfully
obtained, the Court likewise concludes that his claim is habeas in nature
and not cognizable under § 1983. Under these circumstances, the Court
would normally sever Mosley’s post-conviction habeas claims from this
action. However, the Court declines to do so because Mosley, in essence,
admits that he has not exhausted his available state remedies, which is
required before seeking federal habeas relief.2 Instead, the Court

2To be eligible for habeas relief under § 2241, a pretrial detainee must be “in
custody” and must have exhausted his available state remedies. Dickerson v. State of
La., 816 F.2d 220, 224 (5th Cir. 1987). The exhaustion doctrine is designed to protect
the state courts’ role in the enforcement of federal law and prevent disruption of state
judicial proceedings, as it gives state courts the first opportunity to review and correct
all claims of constitutional error. See Rose v. Lundy, 455 U.S. 509, 518–19 (1982). A
prisoner satisfies the exhaustion requirement when he has fairly presented the factual
and legal basis for a federal claim to the highest state court for review in a procedurally
correct manner. See Satterwhite v. Lynaugh, 886 F.2d 90, 92–92 (5th Cir. 1989). In
Texas, this means that a prisoner must present his claims to the Texas Court of
Criminal Appeals (“TCCA”). See Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir.
1997). In his Answers to the Court’s Questionnaire, Mosley admits that he has not
challenged the legality of his pretrial detention or conviction in the TCCA. See ECF
No. 14 at 4.
concludes that these claims should be dismissed without prejudice for
lack of exhaustion.
B. § 1983 Claims
Mosely seeks to recover monetary damages from Defendants,
presumably in their individual capacities,3 for the same constitutional
violations that he contends led to his arrest and conviction.
1. Detective Mitchell
Mosley’s arrest and conviction stem from a traffic stop. On April 22,
2021, City of Euless police officers initiated a traffic stop of Mosely’s
vehicle and found methamphetamine inside. Mosley was transported to
the City of Euless Jail, where he met and conferred with Defendant
Detective Mitchell. Mosley alleges that Detective Mitchell released him
from custody the same day in return for Mosley’s help in locating a
known drug dealer named Richard Wiley. Mosely did not locate Wiley
and was arrested “months later” for possessing the drugs that were
found in his vehicle on April 22. See ECF Nos. 5, 14.
Mosely claims that Detective Mitchell violated the Fourth
Amendment because he did not have probable cause to initiate his arrest
based on criminal conduct that occurred months prior. Mosley argues
that any probable cause Detective Mitchell may have originally had to
arrest him on April 22, in essence, expired. See ECF No. 14 at 5.
In accordance with Heck, the Court must consider whether a
judgment in Mosley’s favor would necessarily imply the validity of his
conviction. The Court concludes that it would. See Cormier v. Lafayette
City-Parish Consol. Gov’t, 493 F. App’x 578, 583 (5th Cir. 2012) (“We

33To the extent that Mosley seeks to recover monetary damages from Defendants
Mitchell, Waybourn, Brown, and Nguyen in their official capacities, the Court
concludes that Mosley fails to state a plausible § 1983 against them. As discussed
below, these defendants are municipal employees. Suits brought against municipal
employees in their official capacities “generally represent only another way of pleading
an action against an entity of which an officer is an agent.” See Monell v. New York
City Dep’t of Social Serv.’s, 436 U.S. 658, 690 (1978). In other words, in order to recover
damages under § 1983 from municipal employees in their official capacities, a plaintiff
must demonstrate that the municipality itself is liable for the alleged unlawful
conduct. But municipalities are only liable if official policies or customs cause injuries
to the plaintiff. Id. Here, Mosley does name the City of Euless or Tarrant County as
defendants in this case. Nor does he even allege, much less plead any facts to show,
that these entities’ policies and/or customs led to his alleged unlawful arrest and
conviction.
have specifically noted that false-arrest and malicious-prosecution
claims challenge the existence of probable cause and, thus, by their
essence are collateral attacks on a criminal judgment’s validity.”)
(citations omitted). Thus, Mosley has no viable claim for damages
against Detective Mitchell unless he can demonstrate that his conviction
has been invalidated. Mosely has not done so. Although Mosley contends
that his detention was invalidated by the 396th Judicial District Court,
Tarrant County, Texas, his statement is belied by public record.4 See
ECF No. 14 at 3. Further, he admits that he has not yet challenged the
legality of his pretrial detention and/or conviction in the TCCA. Id. at 4.
For these reasons, the Court concludes that Mosley’s claims against
Detective Mitchell are barred by Heck and, therefore, not cognizable
under § 1983.5
2. Bill E. Waybourn
Mosley claims that Tarrant County Sheriff Bill E. Waybourn
unlawfully held him in Tarrant County Jail while his state criminal
proceedings were pending. He alleges that his detention there was
unlawful because City of Euless police officers had no probable cause to
arrest him and that his bond was excessive. Because a ruling in Mosley’s
favor on this claim would implicate the invalidity of his otherwise
unchallenged conviction, the Court concludes that his claim against
Waybourn is barred by Heck and, therefore, not cognizable under § 1983.
3. Mike Brown
Mosley sues Defendant Mike Brown, the “Chief of Euless City Jail.”
He claims that Brown is the supervisor of Mosley’s arresting officers
and, therefore, is responsible for their alleged unlawful arrest of him.
Mosley is incorrect.
Under § 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability. See Thompkins v. Belt,

4After conducting an online search via www.texascourts.gov, the Court takes
judicial notice of the fact that, to date, there is no public record that shows Mosley has
challenged his pretrial detention or conviction in the TCCA.

5See Anderson v. Galveston Cnty. Dist. Clerk, 91 F. App’x 925 (5th Cir. 2004)
(finding district court did not abuse its discretion in dismissing the complaint as
frivolous given that the damages claim raised therein was Heck-barred and thus had
no arguable merit); see also Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
28 F.2d 298, 303 (5th Cir. 1987) (citations omitted). However, a
supervisor may be held liable if there exists either (1) his personal
involvement in the constitutional deprivation, or (2) a sufficient causal
connection between the supervisor’s wrongful conduct and the
constitutional violation. Id. Supervisory liability can be established
without overt personal participation in the offensive act if supervisory
officials implement a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the
constitutional violation. Id. at 304 (citations omitted). Existence of a
constitutionally deficient policy cannot be inferred from a single
wrongful act. Id.
Here, Mosley does not allege that Brown was personally involved in
his arrest or that his conduct otherwise led to his arrest. For example,
Mosley does not allege that Brown directed City of Euless Police officers
to initiate his arrest or that Brown was, in any way, personally involved
in making the decision to do so. Nor does Mosley argue or plead any facts
to demonstrate that Brown implemented or otherwise adopted an
unconstitutional practice or policy of any kind.
The Court, therefore, concludes that Mosley has failed to state a
plausible § 1983 claim against Defendant Mike Brown.
4. Paul Nguyen
Mosley alleges in a conclusory statement that Tarrant County
District Attorney Paul Nguyen “conspired” to unlawfully indict him. But
he does not plead any facts in support of this claim. Importantly, Mosley
does not allege that Nguyen was, at any relevant time, not acting in his
role of representing the district attorney’s office during Mosley’s
criminal proceedings. See ECF No. 14 at 6.
Because the decision to file criminal charges is protected, the Court
concludes that Mosley’s § 1983 clam against Nguyen is barred by the
doctrine of absolute prosecutorial immunity.
5. Harold Johnson
Mosley also sues his court-appointed attorney, Harold Johnson.
Mosley alleges in a conclusory manner that Johnson lied under oath and
received compensation for services that the did not provide. See id. at 7.
Because Johnson is not considered a “state actor” for purposes of § 1983
and Mosley does not plead any facts to demonstrate that Johnson’s
actions, at any relevant time, were taken outside the course of his
professional representation of Mosely in his criminal proceedings, the
Court concludes that Mosely fails to state a plausible § 1983 claim
against Johnson.
CONCLUSION
For the foregoing reasons, Mosley’s habeas claims are DISMISSED
WITHOUT PREJUDICE for lack of exhaustion.®
Mosley’s § 1983 claims against Defendants Detective Mitchell and
Sheriff Bill E. Waybourn are DISMISSED WITH PREJUDICE to
their being asserted again until the Heck conditions are met. See
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Mosley’s § 1983 claims against Defendant Paul Nguyen are
DISMISSED WITH PREJUDICE as barred by the doctrine of
absolute prosecutorial immunity.
Mosley’s § 1983 claims against Defendants Mike Brown and Harold
Johnson are DISMISSED WITH PREJUDICE for failure to state a
claim.
Lastly, in his October 17, 2022 letter to the clerk of Court, Mosley
complains that his former fellow inmate at Tarrant County Jail took
personal property from his cell. See ECF No. 10. Because this claim is
wholly unrelated to the claims raised in Mosley’s Amended Complaint,
the Court will not adjudicate its merits here. However, if Mosley wants
to file a separate lawsuit to address this new claim, he may file a new
complaint on the proper form, which is available in his unit’s library.
SO ORDERED on this 10th day of January 2023.

Mark T. Pittman
UNITED STATES DISTRICT JUDGE

6This dismissal does not prohibit Mosley from attempting to seek federal habeas
relief after he has fully exhausted his available state remedies. However, should he
choose to do so, the Court expresses no opinion whatsoever on the underlying merits
of his claims.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452258. Public record. Not legal advice.