Jordan v. Harris County Court

□ Southern District of Texas

ENTERED

November 18, 2024

IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHARLES JORDAN, a/k/a CHARLES §

ARTHUR THOMAS JORDAN, §

§

Plaintiff, §

§

Vv. § Civil Action No. H-22-1402

§

HARRIS COUNTY COURT, e¢ al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff a Bastrop County pretrial detainee awaiting trial on charges for assaulting

a police officer. He filed a second amended pro se civil complaint under 42 U.S.C.§ 1983

against various named and unnamed defendants. (Docket Entry No. 16.) As judicial relief,

he requests “punitive, compensative, and exculpatory damages.’ Id., p. 5. He seeks leave

to proceed in forma pauperis. Although plaintiff a “three strikes” litigant under 28 U.S.C.

§ 1915(g), he incurred his third strike after filing the instant lawsuit.

Having screened the second amended complaint as required by 28 U.S.C.§ 1915(e),

the Court DISMISSES this lawsuit for the reasons shown below.

I. LEGAL STANDARDS

'The Court construes “compensative” damages as meaning compensatory damages, but is

unfamiliar with the term, “exculpatory damages.”

When a prisoner seeks to proceed in forma pauperis, the Court must evaluate the

complaint and dismiss it without service of process if the Court finds that the complaint is

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §

1915(e)(2)(B).

A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490

U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably

meritless legal theory, “such as if the complaint alleges the violation of a legal interest which

clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (Sth Cir. 1998). A claim has no

arguable basis in fact if “after providing the plaintiff the opportunity to present additional

facts when necessary, the facts alleged are clearly baseless.” Talib v. Gilley, 138 F.3d 211,

213 (Sth Cir. 1998).

To determine whether a complaint fails to state a claim under section 1915(e), courts

apply the same standard used for dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure (“FRCP”). Bazrowx v. Scott, 136 F.3d 1053, 1054 (Sth Cir. 1998). To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. Jd. All well-pleaded facts are accepted as true and viewed in the light most

favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (Sth Cir. 1996). Pleadings must

show specific, well-pleaded facts, not conclusory allegations, to avoid dismissal. Guidry v.

Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Conclusory assertions are not accepted

as true.

A plaintiff must provide “more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). In short, a complaint fails to state a claim upon which relief may be granted

when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Id.

at 570. When a plaintiff “ha[s] not nudged [his] claims across the line from conceivable to

plausible, [his] complaint must be dismissed.” Jd.; Iqbal, 556 U.S. at 678.

When reviewing a pro se plaintiff's complaint, the courts must construe the factual

allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, a

plaintiff’ s pro se status does not offer him “an impenetrable shield, for one acting pro se has

no license to harass others, clog the judicial machinery with meritless litigation and abuse

already overloaded court dockets.” Farguson v. MBank Houston, NA., 808 F.2d 358, 359

(Sth Cir. 1986). Even under the liberal standards afforded by Haines, pro se litigants must

still “abide by the rules that govern the federal courts.” E.£.0.C. v. Simbaki, Ltd., 767 F.3d

475, 484 (Sth Cir. 2014). They must properly plead sufficient facts that, when liberally

construed, state a plausible claim to relief. Id.

Plaintiffs second amended complaint, as were his original and amended complaints,

is difficult to follow, and asserts various unrelated and conclusory claims against multiple

named and unnamed defendants. The Court has made every reasonable effort to understand

and liberally construe the pleadings. However, having provided plaintiff three opportunities

to plead viable claims against the defendants through an original, amended, and second

amended complaint, the Court finds that no viable claims have been raised. The Court is of

the opinion that plaintiff has pleaded his best case, and that further leave to amend would

be futile. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (Sth Cir. 1998) (per curiam).

Consequently, plaintiff's claims will be dismissed with prejudice.’

Il. ANALYSIS

Plaintiff brings this action under 42 U.S.C. § 1983. “Section 1983 does not create any

substantive rights, but instead was designed to provide a remedy for violations of statutory

and constitutional rights.” Lafleur v. Texas Dep’t of Health, 126 F.3d 758, 759 (Sth Cir.

1997) (per curiam). To state a valid claim under section 1983, a plaintiff must allege a

violation of rights secured by the Constitution or laws of the United States, and demonstrate

that the alleged deprivation was committed by a state actor — a person acting under color of

state law. West v. Atkins, 487 U.S. 42, 48 (1988); Gomez v Galman, 18 F.4th 769, 775 (Sth

Cir. 2021) (per curiam). When the facts alleged by a plaintiff, taken as true, do not show a

violation of a constitutional right, the complaint is properly dismissed for failure to state a

viable claim. See, e.g., Samford v. Dretke, 562 F.3d 674, 678 (Sth Cir. 2009) (per curiam);

Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (Sth Cir. 2006).

°The Court acknowledges that plaintiffs parties and claims have been improperly joined

under FRCP 18 and 20, and are subject to dismissal under FRCP 21. However, because the claims

are frivolous and/or fail to state a viable claim for relief under section 1983 and state law, they will

be dismissed pursuant to section 1915(e).

Plaintiffs claims appear to fall into three overlapping categories: racial/political

discrimination, religious discrimination, and mental health discrimination. His overarching

claim is that all of his interactions with defendant law enforcement officials, mental health

officials, and prosecutory officials have been the result of discrimination against him because

of his race (white) and political views (Republican and Confederate).

A. State Actors

Plaintiff asserts that an unidentified person at an undisclosed location on an

undisclosed date called 911 after hearing plaintiff s political views. He argues that this “cop

caller” violated his constitutional right to freedom of speech, “the Texas Partisapation [sic]

Act,” and the Interstate Commerce Clause. Plaintiff pleads no factual allegations sufficient

to support a claim for violation of his rights under any of these provisions. Moreover, absent

any factual allegations showing that the “cop caller” was a state actor and not a private

citizen, plaintiff fails to state a viable claim under section 1983. Plaintiff's claims against

the “cop caller” are DISMISSED WITH PREJUDICE for failure to state a viable claim for

relief under section 1983 or state law.

Plaintiff further complains that his unnamed court-appointed attorney in an

unidentified court proceeding never questioned him about his aggravated assault case. This

allegation fails to raise an issue of constitutional dimension under section 1983 or state law.

Moreover, attorneys serving as defense counsel, even if appointed by the court, are not state

actors and cannot be sued under section 1983. Polk County v. Dodson, 454 US. 312, 318,

324-25 (1981); Mills v. Criminal District Court No. 3, 837 F.2d 677, 679 (Sth Cir. 1988).

Plaintiff's claim against his defense counsel is DISMISSED WITH PREJUDICE for

failure to state a viable claim for relief under section 1983 or state law.

Plaintiff also appears to bring section 1983 claims against President Joe Biden for

“voter fraud in Atlanta” at an undisclosed time “via voting machines & HAVA of ties to

China by voting machine company in GA.” (Docket Entry No. 16, pp. 3-4.) He pleads no

supporting factual allegations. President Biden is a federal actor, not a state actor. Federal

actors can have limited liability under Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), but they cannot be sued under section 1983. Even so, plaintiffs conclusory claims

are unsupported by any factual allegations sufficient to raise a viable Bivens claim for

violation of plaintiffs constitutional or other federal rights, and his claims against President

Joe Biden are DISMISSED WITH PREJUDICE.

B. Claims for Racial/Political/Religious Discrimination

Plaintiffclaims that his Harris County arrest, detention, prosecution, and/or conviction

were motivated by racial and political discrimination by “Harris County Sherriff [sic] Ed

Gonzales 2022 Democrat.” (Docket Entry No. 16, p. 1.) Plaintiff alleges that he was a

“White man” arrested by “latino and other Black” police officers and denied an examining

trial due to “the Sheriff's policy of discriminating on Whites, Republicans, and

Confederates.”’ (Docket Entry No.16, p. 1.) Plaintiff’s conclusory assertions are

*Plaintiff raised similar political discrimination claims in a pro se civil lawsuit

contemporaneously filed in Jordan v. Democrats of Dalton, C.A. No. 22-CV-03278-JPB (N.D. Ga.

Sept. 16, 2022). The court in that case dismissed the claims as frivolous, finding that “The notion

that Plaintiff is being falsely imprisoned in a Texas jail by groups of Democrats in Georgia and

elsewhere is wildly implausible, and nothing in Plaintiffs complaint has an arguable basis in either

insufficient to raise a viable claim for unlawful discrimination or show the existence of an

unlawful discriminatory policy under section 1983. Moreover, his claim that Republican

votes were suppressed through interstate commerce violations is wholly conclusory and

unsupported by any factual allegations sufficient to raise a viable claim under section 1983.

Plaintiffs claims for racial and political discrimination and/or suppression of Republican

votes are DISMISSED WITH PREJUDICE for failure to raise a viable claim for relief.

Plaintiff further alleges that “Harris County DA Kim Ogg Democrat” discriminated

against him as a homeless white man at an undisclosed time, and that his criminal

prosecution was racially and politically motivated because he and his defense attorney were

not present at grand jury proceedings. (Docket Entry No. 16, p. 2.) No supporting factual

allegations as to unlawful discrimination are pleaded. Moreover, plaintiff and his defense

counsel had no constitutional or statutory right to be present during grand jury proceedings.

TEX. CODE CRIM. Proc. Art. 20A.102. Plaintiffs claims are wholly conclusory and

unsupported by factual allegations sufficient to raise a viable claim under section 1983.

Plaintiff's claims against Harris County District Attorney Kim Ogg are DISMISSED WITH

PREJUDICE for failure to raise a viable claim for relief under section 1983 or state law.

Plaintiff also alleges that Sylvester Turner “violated interstate commerce” at an

undisclosed time. It is unclear whether this is related to a claim for racial discrimination or

political discrimination. Plaintiff pleads no factual allegations supporting his claim that

law or fact.”

Turner violated interstate commerce, nor does he show that any such violation impinged on

his constitutional or other federal rights. Plaintiffs conclusory assertion is insufficient to

raise a viable claim for relief under section 1983, and his claim against Sylvester Turner is

DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim.

Plaintiff twice states in his second amended complaint that his arrest was the result

of religious discrimination, and that police officers stole or abandoned his “religious rose

quartz crystal” in violation of the Fourth Amendment and the Interstate Commerce Clause.

(Docket Entry No. 16, pp. 2, 4.) He pleads no factual allegations supporting his conclusory

assertion of religious discrimination, a Fourth Amendment violation, or an Interstate

Commerce Clause violation, and no viable claim is raised under section 1983. To the extent

plaintiffis complaining ofa loss of personal property by police officers, no issue of a federal

constitutional dimension is raised. Plaintiff's property claim is barred by the Parratt/Hudson

doctrine, which requires him to pursue his loss in the state courts through the tort of

conversion. See Caine v. Hardy, 943 F.2d 1406, 1412 (Sth Cir. 1991) (holding that the

random, unauthorized, and even negligent deprivation of a property or liberty interest does

not violate procedural due process if the State furnishes an adequate post-deprivation

remedy); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S.

527, 541-44 (1981). The state law tort of conversion is generally recognized as an adequate

post-deprivation remedy. Murphy Collins, 26 F.3d 541, 543-44 (Sth Cir. 1994), Plaintiffs

claims for religious discrimination and property loss are DISMISSED WITH PREJUDICE

for failure to state a claim under section 1983.

Plaintiff asks as additional judicial relief that the Court prohibit his transfer to the

Texas Department of Criminal Justice “because of [sic] my religious long hair will be cut or

I will fight the guards or be taken to solitary.” (Docket Entry No. 1, p. 5.) At this juncture,

it is unknown whether plaintiff will be sentenced to prison in his pending Bastrop County

criminal proceedings, and the Court has no authorization or jurisdiction to grant speculative

relief or enter an advisory ruling as to potential future events. Regardless, no judicial relief

is warranted, as the Court is dismissing plaintiffs claims for relief.

C. Mental Health Discrimination

Plaintiff alleges that at an undisclosed point in time, Harris County Jail physician

“Miss Wilson” prevented him from voting for Trump via mail in Colorado because she gave

him medication which left him unable to think clearly to assert his right to vote. (Docket

Entry No. 18, p. 1.) Plaintiffs claim is unsupported by factual allegations sufficient to raise

an issue of constitutional dimension. Plaintiff's claim against Miss Wilson is DISMISSED

WITH PREJUDICE for failure to raise a viable claim for relief under section 1983.

Plaintiff further asserts that the Harris County Sheriffs Office and officers

discriminated against him as a mental health inmate because “the attorney visit phone” was

broken. Plaintiff claims that he was forced to communicate with counsel through letters, jail

visits, and court hearings. No supporting factual allegations as to discrimination are pleaded,

and his allegations show that he was not denied access to counsel or the courts. Plaintiffs

claims are wholly conclusory and unsupported by factual allegations sufficient to raise a

viable claim under section 1983. Plaintiffs claims as to mental health discrimination based

on a broken telephone are DISMISSED WITH PREJUDICE for failure to raise a viable

claim for relief under section 1983.

Plaintiff also alleges that, at an undisclosed time and location, an unnamed “Black Dr.

& black behavior tech” put him in a safety cell for singing due to plaintiffs political views.

It is unclear whether plaintiff alleges this action as political discrimination or mental health

discrimination. In either event, his claims are wholly conclusory and unsupported by factual

allegations sufficient to raise a viable claim under section 1983. Plaintiffs claims against

the unnamed “Black Dr. & black behavior tech” are DISMISSED WITH PREJUDICE for

failure to raise a viable claim for relief under section 1983.

Plaintiff argues that he should not be detained in “mental health rehab” because “I am

sane and have a right not to live with crazy people.” (Docket Entry No. 16, p. 5.) He argues

that he was placed in mental health housing due to the Harris County Sheriff's policy of

discriminating against white defendants holding Republican and Confederate political views.

That is, plaintiff asserts that the only reason he was placed in mental health housing was

because of his white race and political views.’ Plaintiff does not state when and where this

incident took place, nor does he support his conclusory claim of discrimination with factual

allegations sufficient to raise a viable claim under section 1983. No viable claim for relief

under section 1983 is raised, and the claim is DISMISSED WITH PREJUDICE.

“Although plaintiff denies having mental health issues, he alleged in a pro se civil lawsuit

contemporaneously filed in the United States District Court for the Northern District of Georgia that

“I am schizophrenic & get court ordered medication.” Jordan v. Georgia, C.A. No.

22-cv-00069-HLM (N.D. Ga. Apr. 26, 2022) (dismissed as frivolous and for failure to state a claim).

10

D. Claims Barred by Heck

Plaintiff fares no better in seeking monetary compensation for his Harris County

arrest, detention, prosecution, and/or conviction. He claims that ten unnamed Houston police

officers arrested him at Whole Foods on an undisclosed date solely due to his white race,

and that they violated interstate commerce by suppressing Republican votes. According to

plaintiff, the officers violated “Terry v. Ohio.”” He further claims that Harris County Sheriff

Ed Gonzales and five unnamed “booking” deputies prevented him from giving evidence at

pretrial examining trial due to a policy of discriminating against white defendants. In short,

plaintiff contends that he was arrested, detained, and charged with a criminal offense solely

due to racial discrimination against white defendants and in violation of his constitutional

rights.

Because a judgment in plaintiffs favor as to these claims would call into question the

validity of his arrest, detention, prosecution, and/or conviction, his claims are barred by Heck

v. Humphrey, 512 U.S. 477, 486-87 (1994). See Richards v. Hearn, No. 21-20358, 2022 WL

996416, at *1 (Sth Cir. Apr. 4, 2022) (“[B]ecause Richards’s claims [c]all into question the

validity of his state conviction, and because he has not established that this conviction has

already been reversed, expunged, or otherwise declared invalid, he may not obtain monetary

damages.”). Plaintiff does not state that the Harris County criminal proceedings were

°The Court presumes plaintiff is referring to Terry v. Ohio, 392 U.S. 1 (1968), regarding a

police officer’s right to temporarily stop and frisk an individual for weapons under certain

circumstances.

11

terminated in his favor — that is, reversed on direct appeal, expunged by executive process,

set aside by a state court of competent jurisdiction, or set aside by a federal habeas court. See

Wilson v. Midland County, Texas, 116 F.4th 384, 390 (Sth Cir. Sept. 13, 2024).

Consequently, his claims seeking monetary damages for an allegedly unlawful arrest,

detention, prosecution, and/or conviction do not raise colorable claims for which relief can

be granted under section 1983.°

Plaintiff's civil claims challenging the validity of his arrest, detention, prosecution,

and/or conviction are DISMISSED WITH PREJUDICE to their being asserted again until

the Heck conditions are met.

I. CONCLUSION

For the above reasons, this lawsuit is DISMISSED WITH PREJUDICE as frivolous

and/or for failure to state a viable claim for relief under section 1983 or state law. Any and

all pending motions are DENIED AS MOOT.

The dismissal of plaintiff's clams CONSTITUTES A STRIKE for purposes of 28

U.S.C. § 1915(g), and stands as plaintiffs ninth strike under that provision. See Jordan v.

Georgia, C.A. No. 22-cv-00069-HLM (N.D. Ga. Apr. 26, 2022) (dismissed as frivolous and

®Plaintiff provides no information as to the arrest, detention, and/or conviction at issue, and

the Court is unable to take judicial notice of any applicable public state court records that might be

available online.

12

for failure to state a claim); Jordan v. North Dakota, C.A. No. 17-cv-00169-CSM (D. N.D.

Oct. 10, 2017) (dismissed as frivolous and for failure to state a claim); Jordan v. Bastrop

County District Attorney, C.A. No. A-22-CV-248-LY (W.D. Tex. Apr. 29, 2022) (dismissed

as malicious); Jordan v. University of Texas at Austin, C.A. No. 22-cv-00243-LY (W.D. Tex.

June 27, 2022) (dismissed for failure to state a claim); Jordan v. Democrats of Dalton, C.A.

No. 22-CV-03278-JPB (N.D. Ga. Sept. 16, 2022) judgment dismissing case a frivolous);

Jordan v. Bastrop County District Attorney, C.A. No. A-21-CV-1135-LY (W.D. Tex. Oct.

7, 2022) (claims dismissed as frivolous and for failure to state a claim; final judgment entered

September 3, 2024); Jordan v. City of Ashville, C.A. No. 1:22-cv-00062-MR (W.D. N.C.

May 11, 2022) (dismissed for failure to state a claim); Jordan v. Equifax, C.A. No.

1:22-CV-03277-JPB (N.D. Ga. Jan. 3, 2023) (dismissed as malicious and for false

disclosures to court).

Pursuant to the provisions of section 1915(g), plaintiffis BARRED from proceeding

in forma pauperis in any future federal district court case or appeal, including any appeal

from the dismissal in the instant case, unless he is under imminent danger of serious physical

injury at the time of filing. 28 U.S.C. § 1915(g). Plaintiffpleaded no allegations of imminent

danger of serious physical injury at the time he filed the instant lawsuit.

Signed at Houston, Texas, on this the Se ‘day of ona,

Kew Pete

KEITH P. ELLISON

_UNITED STATES DISTRICT JUDGE

13