Cerf v. Parinello

IN THE UNITED STATES DISTRICT COURT July 01, 2022

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

CLARENCE LAMONT CERF, §

TDCJ # 01145508, §

§

Plaintiff, §

§

VS. § CIVIL ACTION NO. 4:22-1384

§

M. PARINELLO, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Clarence Lamont Cerf, an inmate in the Texas Department of Criminal

Justice –Correctional Institutions Division (TDCJ), brings claims against Harris County

Sheriff Ed Gonzalez and Detective M. Parinello. Cerf’s claims are related to criminal

proceedings that resulted in two convictions against him in 2002. Defendant Gonzalez

removed this action from state court (Dkt. 1) and filed a motion to dismiss (Dkt. 7). Cerf

has filed a response (Dkt. 12) requesting remand, and the motion is ripe for decision. Cerf

also has filed a motion to add and locate parties (Dkt. 13). Although Parinello has not

appeared in this action, the Court screens Cerf’s claims against Parinello under 28 U.S.C.

§ 1915A(b).

Having reviewed the pleadings, the motion and response, the applicable law, and all

matters of record, the Court concludes that Gonzalez’s motion to dismiss should be

granted and that Plaintiff’s claims against both defendants should be dismissed.

Plaintiff’s motion to add and locate parties will be denied.

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I. BACKGROUND

Cerf filed this case on March 25, 2022, in the 190th District Court of Harris County

with a petition headed “Hate Crime Action” (Dkt. 1-1). He named Gonzalez and Parinello

as defendants. Gonzalez answered and removed the case to this Court on April 29, 2022,

invoking the Court’s federal question jurisdiction.

Cerf’s pleadings invoke the 5th, 8th, and 14th Amendments to the Constitution (Dkt.

1-1, at 7; see Dkt. 12, at 13). He states that Detective Parinello was under contract with the

“CyFair/Cypress Police Dep]artmen]t” in Harris County and was involved in Cerf’s arrest

and interrogation in 2002 (Dkt. 1-1, at 2). He alleges that Parinello violated his rights in

connection with two Harris County prosecutions against Cerf: Case No. 0910599

(aggravated sexual assault) and Case No. 0910600 (aggravated robbery). See id. at 3-4

(alleging that Parinello was biased, engaged in tortious conduct, made improper claims

regarding DNA evidence, and was responsible for an inaccurate photo spread). In both

cases, the 337th District Court entered judgment against Cerf on December 11, 2002, and

sentenced him to 35 years in TDCJ. See Dkt. 7-1 (judgment in Case 0910599); Dkt. 7-2

(judgment in Case 0910600). Cerf is still serving his sentences in TDCJ.

Cerf also appears to allege that, during his incarceration in TDCJ, he has been

subject to interrogation in connection with the crimes for which he was convicted in 2002.

He states that the interrogation is “covert,” “unusually alarming to the mind,” and violates

the “chemical weapons ban” (Dkt. 1-1, at 3, 5). He also alleges that he is being tortured in

TDCJ. See id. at 6 (alleging that he is being tortured with “rectal-rehydration” and “water-

boarding” techniques that that “operatives” can “see through [his] eyes” and “send their

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voice talking in [his] head”). He claims that Parinello and the Harris County Sheriff’s

Department are liable for the alleged incidents (id. at 4).

Sheriff Gonzalez seeks dismissal of all claims against him. After Gonzalez filed his

motion to dismiss, Cerf filed a list of interested parties and a motion to add and locate

parties (Dkt. 10; Dkt. 13). He seeks to add two defendants to this suit: Bryan Collier, the

director of TDCJ, and Cris Love, the director of TDCJ’s Office of the Inspector General.

He also seeks the Court’s assistance in serving Detective Parinello with process, stating

that three citations for Parinello have been returned with notations that Parinello has retired

and may have moved out of state. Additionally, Cerf’s response (Dkt. 12) seeks remand

to state court.

II. LEGAL STANDARDS

A. The PLRA and Pro Se Pleadings

Because the plaintiff is an inmate seeking redress from a government entity, officer,

or employee, the Court is required by the Prison Litigation Reform Act (PLRA) to

scrutinize the claims and dismiss the complaint at any time, in whole or in part, if it

determines that the complaint “is frivolous, malicious, or fails to state a claim upon which

relief may be granted,” or “seeks monetary relief from a defendant who is immune from

such relief.” 28 U.S.C. § 1915A(b); see also 42 U.S.C. § 1997e(c). The Court’s screening

authority applies to cases removed from state court. See Hawthorne v. Cain, 54 F. App’x

797, 2002 WL 31845746, at *1 (5th Cir. 2002); Ruston v. Dallas Cnty., No. CIV.A.3:07-

CV-1076-D, 2008 WL 958076, at *2 (N.D. Tex. Apr. 9, 2008).

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A claim is frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke,

562 F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an arguable basis in law if it is based

on an indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th

Cir. 2013) (cleaned up). “A complaint lacks an arguable basis in fact if, after providing

the plaintiff the opportunity to present additional facts when necessary, the facts alleged

are clearly baseless.” Id. (cleaned up). Allegations that are “fanciful,” “fantastic,” and

“delusional” qualify as factually frivolous for purposes of 28 U.S.C. § 1915(e)(2)(B).

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke v. Williams, 490 U.S.

319, 325, 328 (1989)).

In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds

pro se. Complaints filed by pro se litigants are entitled to a liberal construction and,

“however inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks

and citation omitted). Even under this lenient standard a pro se plaintiff must allege more

than “‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of

action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).

Regardless of how well-pleaded the factual allegations may be, they must demonstrate that

the plaintiff is entitled to relief under a valid legal theory. See Neitzke, 490 U.S. at 327;

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).

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B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) may be granted if the pleading “fail[s] to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In considering

a Rule 12(b)(6) motion, courts generally must accept the factual allegations contained in

the complaint as true. Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th

Cir. 2009). Federal pleading rules require “only ‘a short and plain statement of the claim

showing that the pleader is entitled to relief.’” Twombly, 550 U.S. at 555 (quoting FED. R.

CIV. P. 8(a)(2)). The complaint must, however, contain sufficient factual allegations, as

opposed to legal conclusions, to state a claim for relief that is “plausible on its face.” Iqbal,

556 U.S. at 677–78; see Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir. 2012). The

pleadings also must claim that the plaintiff is entitled to relief under a valid legal theory.

See Neitzke, 490 U.S. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Under

this standard, the court “construes the complaint liberally in favor of the plaintiff,” “takes

all facts pleaded in the complaint as true,” and considers whether “with every doubt

resolved on [the plaintiff’s] behalf, the complaint states any valid claim for relief.”

Harrington, 563 F.3d at 147 (cleaned up).

The court’s review under Rule 12(b)(6) is limited to “the complaint, any documents

attached to the complaint, and any documents attached to the motion to dismiss that are

central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). See Walch v. Adjutant General’s

Dep’t of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (on a Rule 12(b)(6) motion, documents

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attached to the briefing may be considered by the court if the documents are sufficiently

referenced in the complaint and no party questions their authenticity (citing 5B Charles

Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.

2004))). The Court may also rely on judicially noticed facts. Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011).

III. ANALYSIS

Cerf cites the 5th, 8th, and 14th Amendments to the Constitution (Dkt. 1-1, at 7;

Dkt. 12, at 13). His claims regarding his arrest may also implicate the 4th Amendment.

These claims confer subject-matter jurisdiction on this Court because they involve a federal

question. See 28 U.S.C. § 1331; 28 U.S.C. 1441(a). Section 1983, 42 U.S.C. § 1983,

provides a vehicle for a civil-rights claim against a person acting “under color of state law,”

such as a county official, for a constitutional violation. See Pratt v. Harris Cty., Tex., 822

F.3d 174, 180 (5th Cir. 2016); Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).1 Cerf

also appears to plead tort claims against Parinello.

1 Cerf protests that he does not wish to bring his case under 42 U.S.C. § 1983 and invokes

several other statutes. First, he cites 18 U.S.C. § 229(a) regarding chemical weapons (Dkt. 12, at

5). However, this criminal statute does not confer a private right of action in civil proceedings.

See 18 U.S.C. § 229D (“The United States may obtain in a civil action an injunction . . . “)

(emphasis added). Second, he cites the Emmitt Till Act (Dkt. 12, at 5, 8-9), which is an anti-

lynching provision codified at 18 U.S.C. § 249(a). However, as above, this criminal provision

does not confer a private right of action in civil proceedings. Finally, Cerf cites 28 U.S.C. § 534,

which he refers to as a “hate crime” act (id. at 14). 28 U.S.C. § 534 is a provision authorizing the

Attorney General of the United States to, among other things, collect and preserve criminal records

and to exchange the records with other officials. Because none of Cerf’s cited statutes provide for

this Court’s review of his constitutional claims in a civil action, the Court proceeds under § 1983.

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A. Heck-Barred Claims

Cerf states that his claims against Gonzalez and Parinello are related to his

convictions in Harris County for aggravated sexual assault and aggravated robbery (Dkt.

1-1, at 3). Under Heck v. Humphrey, 512 U.S. 477 (1994), a § 1983 claim for damages

that bears a relationship to a conviction or sentence is not cognizable unless the conviction

or sentence has been invalidated. To prevail based on allegations of “harm caused by

actions whose unlawfulness would render a conviction or sentence invalid,” a civil-rights

plaintiff must prove “that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determinations, or called into question by a federal court’s issuance of a writ of habeas

corpus [under] 28 U.S.C. § 2254.” Id. at 486-87. If a judgment in favor of a civil-rights

plaintiff “would necessarily imply the invalidity of his conviction or sentence,” then the

complaint “must be dismissed unless the plaintiff can demonstrate that the conviction or

sentence has already been invalidated.” Id. at 487; see Hainze v. Richards, 207 F.3d 795,

798 (5th Cir. 2000). The Supreme Court has unequivocally stated that “a state prisoner’s

§ 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages

or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to

conviction or internal prison proceedings)—if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S.

74, 81-82 (2005) (emphasis removed).

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To the extent Cerf brings claims under § 1983 that challenge his prosecution or

incarceration for the crimes of which he was convicted in 2002, his claims are barred under

Heck. Because a finding in Cerf’s favor on such claims would necessarily imply that he is

unlawfully confined, he would be entitled to proceed with the claim only if the judgment

against him previously has been reversed or otherwise declared invalid. Public court

records do not reflect, and Cerf does not claim, that his sentences have been invalidated or

otherwise set aside. To the contrary, he is incarcerated in TDCJ based on the convictions

he references. The rule in Heck therefore precludes his claims for relief. See Wilkinson,

544 U.S. at 81-82; Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998) (en banc). Cerf’s

civil-rights claims are not cognizable under 42 U.S.C. § 1983 at this time and his claim for

injunctive and declaratory relief must be dismissed without prejudice. Id. at 191; Johnson

v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). His claims for damages must be dismissed

with prejudice to being asserted again until the Heck conditions are met. See id. (explaining

that claims barred by Heck are “dismissed with prejudice to their being asserted again until

the Heck conditions are met”).

B. Claims against Sheriff Gonzalez

To the extent Cerf brings claims that would not imply that his convictions or

sentences are invalid, and thus are not barred under Heck, his claims against Gonzalez must

be dismissed on other grounds.

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1. Official Capacity Claims

Under § 1983, a person may sue a municipality that violates his or her constitutional

rights “under color of” law. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).

A claim against an official in his or her official capacity is “tantamount to a suit against the

municipal entity.” Id. To establish municipal liability under Monell, “a plaintiff must show

the deprivation of a federally protected right caused by action taken pursuant to an official

municipal policy.” Valle v. City of Hous., 613 F.3d 536, 541 (5th Cir. 2010) (cleaned up).

Specifically, a plaintiff must identify “(1) an official policy (or custom), of which (2) a

policy maker can be charged with actual or constructive knowledge, and (3) a constitutional

violation whose moving force is that policy (or custom).” Pineda v. City of Hous., 291

F.3d 325, 328 (5th Cir. 2002) (cleaned up).

Cerf fails to state a claim against Gonzalez in his official capacity because he does

not plead any facts regarding an official policy or custom of Harris County that allegedly

caused a violation of his rights. See Iqbal, 56 U.S. at 677-78. Gonzalez’s motion to dismiss

any official capacity claims against him therefore will be granted.

2. Individual Capacity Claims

To the extent Cerf brings claims against Sheriff Gonzalez in his individual capacity,

the claims must be dismissed for several reasons.

First, Cerf fails to plead any specific facts about Gonzalez or his personal

involvement in the alleged violations of Cerf’s rights. Rather, he alleges specific facts

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against Parinello and merely states that Gonzalez is Harris County Sheriff (Dkt. 1-1, at 2-

4). This is insufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 677–78.

Second, to the extent Cerf sues Gonzalez based solely on his supervisory position

with Harris County, § 1983 does not permit respondent superior liability. Rios v. City of

Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006) (“[t]here is no vicarious or respondeat

superior liability of supervisors under section 1983”). Additionally, Cerf fails to plead

deliberate indifference by Gonzalez or other facts that would be essential to a failure-to-

supervise claim. See Westfall v. Luna, 903 F.3d 534, 552 (5th Cir. 2018) (a failure-to-

supervise or failure-to-train claim requires a showing of deliberate indifference by the

supervisor); Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (a plaintiff seeking to

establish “supervisor liability for constitutional violations committed by subordinate

employees . . . must show that the supervisor acted, or failed to act, with deliberate

indifference to violations of others’ constitutional rights committed by their subordinates”

(cleaned up) (emphasis original).

Finally, the Court notes that, when Cerf was investigated and prosecuted in 2002,

Gonzalez was not sheriff of Harris County. See A History of HSCO Sheriffs, Harris

County Sheriff’s Office, available at https://www.harriscountyso.org/AboutUs/HCSO_

History (last visited June 30, 2022). Although Gonzalez currently is sheriff, Cerf is now in

the custody of TDCJ, not the Harris County Sheriff’s Office.

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C. Claims against Detective Parinello

Parinello has not appeared in this action. Cerf states that his attempts to serve

Parinello with process have been unsuccessful and requests the Court’s assistance with

service. The Court reviews Cerf’s claims against Parinello under the PLRA, which requires

the Court to dismiss claims that are frivolous, malicious, or fail to state a claim upon which

relief may be granted. 28 U.S.C. § 1915A(b).2

Cerf’s claims against Parinello appear to pertain exclusively to Parinello’s

involvement in the investigation, interrogation, and prosecution of Cerf in 2002 for

aggravated sexual assault and aggravated robbery. See, e.g., Dkt. 1-1, at 4 (alleging

Parinello was biased and engaged in “tortious conduct” in connection with DNA evidence

and a photo spread); Dkt. 12, at 12 (alleging Parinello acted improperly in connection with

blood semen samples, a confession, and a photo spread). Because a finding in Cerf’s favor

on such claims would necessarily imply that he is unlawfully confined, and because his

sentences have not been invalidated or otherwise set aside, his civil rights claims against

Parinello are barred by Heck for the reasons explained above. Any claim against Parinello

for injunctive and declaratory relief must be dismissed without prejudice. His claims for

damages must be dismissed with prejudice to being asserted again until the Heck conditions

are met. See Clarke, 154 F.3d 191; Johnson, 101 F.3d at 424.

2 The Court may exercise supplemental jurisdiction over Cerf’s state-law claims against

Parinello because the claims are part of the same case or controversy that form the basis of his

constitutional claims. See 28 U.S.C. § 1367(a). Cerf alleges tortious conduct by Parinello during

the 2002 investigation and may additionally allege negligence.

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To the extent Cerf brings claims against Parinello regarding his allegations that he

recently has been tortured or monitored during his incarceration in TDCJ, his claims also

fail. Cerf does not sufficiently plead allegations regarding Parinello’s personal involvement

in the alleged wrongdoing to state a claim under a valid legal theory that is plausible on its

face. See Iqbal, 556 U.S. at 677-78; Neitzke, 490 U.S. at 327; Denton, 504 U.S. at 32-33;

Geiger, 404 F.3d at 373. Cerf pleads no facts suggesting that Parinello has authority over

or involvement in Cerf’s current incarceration in TDCJ and, moreover, states that Parinello

apparently has retired from his detective position in Harris County and left the state.

Cerf’s claims against Parinello therefore will be dismissed under 28 U.S.C.

§ 1915A(b) as frivolous and for failure to state a claim on which relief can be granted.

D. Cerf’s Other Motions

Cerf’s request to remand this case to state court (Dkt. 12) will be denied under 28

U.S.C. § 1447(c) because the request is untimely and because, as stated above, this Court

has federal question jurisdiction under 28 U.S.C. § 1331.

Cerf’s request for default judgment against Parinello (Dkt. 13) will be denied.

Because Parinello has not been served with process, he is not in default.

Cerf moves to add TDCJ officials Collier and Love as defendants (Dkt. 13), seeking

to bring claims against Collier for “unlawful acts” connected to the “chemical

interrogation” placed in his blood and against Love for negligence in connection with

Cerf’s grievances (Dkt. 13, at 2). Rule 15(a) provides that a court “should freely give leave

[to amend] when justice so requires.” FED. R. CIV. P. 15(a)(2). A court must have a

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“substantial reason” to deny a request for leave to amend. Stem v. Gomez, 813 F.3d 205,

215 (5th Cir. 2016). Leave to amend is not automatic, and the decision to grant or deny

leave to amend “is entrusted to the sound discretion of the district court.” Pervasive

Software Inc. v. Lexware GmbH & Co., 688 F.3d 214, 232 (5th Cir. 2012) (cleaned up). A

district court “should consider factors such as undue delay, bad faith or dilatory motive on

the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party, and futility of amendment.” In re Am. Int’l

Refinery, Inc., 676 F.3d 455, 466-67 (5th Cir. 2012) (cleaned up). “Futility” in the context

of a Rule 15 motion to amend means that the proposed amended complaint would fail to

state a claim upon which relief could be granted. Marucci Sports, L.L.C. v. Nat'l Collegiate

Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014).

Cerf brought his motion for leave to amend after Gonzalez filed his motion to

dismiss. As stated above, all of Cerf’s original claims have been dismissed. His proposed

claims against Collier appear futile for the reasons stated above regarding supervisory

authority. See Westfall, 903 F.3d at 552; Porter, 659 F.3d at 446; Rios, 444 F.3d at 425.

His proposed claims against Love appear futile because an inmate does not have a due-

process right to have grievances resolved to his satisfaction. See Geiger, 404 F.3d at 373-

74. Given Cerf’s delay in bringing claims against new defendants and their futility in

stating a federal claim, the Court in its discretion denies leave to amend.

IV. CONCLUSION

For the reasons stated above the Court now ORDERS as follows:

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1. Gonzalez’s motion to dismiss (Dkt. 7) is GRANTED. Cerf’s claims for

injunctive or declaratory relief against Gonzalez that are barred by Heck are dismissed

without prejudice. His claims for damages against Gonzalez that are barred by Heck are

dismissed with prejudice to being asserted again until the Heck conditions are met. In all

other respects, Cerf’s claims against Gonzalez are DISMISSED with prejudice under

Rule 12(b)(6).

2. Cerf’s claims for injunctive or declaratory relief against Parinello that are

barred by Heck are dismissed without prejudice. His claims for damages against Parinello

that are barred by Heck are dismissed with prejudice to being asserted again until the Heck

conditions are met. In all other respects, Cerf’s claims against Parinello are DISMISSED

with prejudice under 28 U.S.C. § 1915A(b) as frivolous and for failure to state a claim on

which relief may be granted.

3. Cerf’s motion to remand (Dkt. 12) is DENIED.

4. Cerf’s motion to add or locate parties (Dkt. 13) is DENIED.

The Clerk will provide a copy of this order to the parties.

SIGNED at Houston, Texas, on July | , 2022.

Heorag QQ Plone

GEORGE C. HANKS, JR.

UNITED STATES DISTRICT JUDGE

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