The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
NO. 95-10100
Summary Calendar
______________
JIM RAY HOUSLEY, Plaintiff-Appellant,
versus
SHERIFF, LIPSCOMB COUNTY,
TEXAS, ET AL., Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(2:92-CV-43)
_________________________________________________________________
(April 13, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM*:
Jim Ray Housley ("Housley"), proceeding in forma pauperis,
filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983
against Calvin Babitzke, Sheriff of Lipscomb County, Texas
("Sheriff Babitzke"); Larry Williams, Sheriff of Custer County,
Oklahoma ("Sheriff Williams"); and Larry Burrows, Sheriff of
Washita County, Oklahoma ("Sheriff Burrows"). The district court
dismissed the complaint as frivolous pursuant to 28 U.S.C. §
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1915(d). We affirm.
I.
Housley's § 1983 complaint alleged that Sheriff Babitzke
arrested him for stealing diesel fuel, although he had no diesel
fuel in his possession, illegally searched him and seized his
property. He alleged that Sheriff Burrows conspired with Sheriff
Babitzke and caused a fugitive from justice complaint to be "filed
falsely." He further alleged that Sheriff Babitzke conspired with
Sheriff Williams to illegally detain Housley, violate his due
process rights and inflict double jeopardy and cruel and unusual
punishment. He also alleged that Sheriff Babitzke conspired with
the Lipscomb County District Attorney, who was not named as a
defendant, to "take all of [Housley's] property and ask him to sign
papers saying in return for his release he will not sue them."
Finally, Housley alleged that he was stopped without probable
cause, he was illegally searched, his property was illegally
seized, he was not arraigned within forty-eight hours of his
arrest, he was denied a speedy trial, he was falsely imprisoned and
he is being held without bond.
The magistrate judge directed Housley to supplement his
pleading to allege with particularity all material facts which
would establish his right to recovery, including detailed facts
supporting his contention that a plea of immunity could not be
sustained. Housley filed an amended complaint. The magistrate
judge subsequently found that Housley's allegations did not "meet
the heightened pleading requirements necessary to commence a
2
lawsuit against a public official for acts for which he is
potentially immune." The magistrate judge again directed Housley
to supplement his pleading to allege with particularity all
material facts on which he would establish his right to recovery,
and presented Housley with fourteen specific questions concerning
his claims.
In response, Housley alleged that Lipscomb County sheriff's
deputies conducted an illegal search and seizure and illegal
arrest, for which Sheriff Babitzke was responsible. He contended
that Sheriff Babitzke was "liable to [him] for conspiracy," but
that he was "not required to plead his evidence." He further
contended that Sheriff Babitzke conspired with Sheriff Burrows to
issue a fugitive from justice warrant in Washita County, Oklahoma,
causing Housley to be illegally held. He contended that Sheriff
Babitzke and Sheriff Burrows were responsible for illegally holding
him in the Washita County, Oklahoma jail from October 1, 1991 until
December 4, 1991. He contended that Sheriff Babitzke and Sheriff
Williams were responsible for illegally holding him in the Custer
County, Oklahoma jail from December 4, 1991 until February 18,
1992. He stated that he was presently illegally confined in a
medium security prison in Oklahoma. He further alleged that his
property was taken without a hearing and that the grand jury
indictment was illegal.
The magistrate judge determined that Housley had refused to
comply with the court's order directing him to allege specific
facts that would defeat a plea of immunity and to plead material
3
facts to support his naked allegation of conspiracy. The
magistrate judge recommended that Housley's complaint be dismissed
for refusal to comply with the court's briefing order. Housley
filed objections to the magistrate judge's Report and
Recommendation.
The magistrate judge subsequently issued a supplemental Report
and Recommendation, in which he determined that Housley had not
provided specific facts to meet the heightened pleading standard to
overcome a defense of qualified immunity. The magistrate judge
again recommended that Housley's complaint be dismissed. Housley
filed objections to the supplemental Report and Recommendation.
The magistrate judge made one last attempt to extract
necessary information from Housley to complete the review under 28
U.S.C. § 1915(d). The magistrate judge directed Housley to fill
out an enclosed questionnaire with factual information, rather than
case citations or legal arguments.
In his responses to the questionnaire, Housley again alleged
that the Lipscomb County and Washita County sheriffs had conspired
to illegally issue a fugitive from justice warrant, resulting in
Housley's confinement. Housley alleged that Sheriff Babitzke took
his property and conspired with other officials to maliciously
prosecute him and to keep his property. With regard to Sheriffs
Williams and Burrows, Housley alleged that they each conspired with
the other two defendants to keep Housley jailed.
The magistrate judge filed a second supplemental Report and
Recommendation, in which he determined that Housley had failed to
4
allege sufficient facts from which it could be held that no
reasonable officer would have committed the acts alleged by
Housley, and that the majority of Housley's allegations constituted
mere conclusional allegations that the defendants acted "illegally"
or "improperly." The magistrate judge noted that Housley's account
of the underlying facts was "almost incoherent." The magistrate
judge recommended that Housley's complaint be dismissed as
frivolous. The district court adopted the magistrate judge's
supplemental Report and Recommendation and second supplemental
Report and Recommendation and dismissed Housley's complaint.
II.
Housley argues that the district court erred by dismissing his
civil rights complaint as frivolous. A complaint filed in forma
pauperis ("IFP") may be dismissed as frivolous pursuant to
§ 1915(d) if it has no arguable basis in law or in fact.1 We
review a § 1915(d) dismissal for an abuse of discretion.2 We may
affirm a district court's decision on a basis not cited by the
district court.3
In Heck v. Humphrey, ___ U.S. ___, 114 S.Ct. 2364, 129 L.Ed.2d
383 (1994), the U.S. Supreme Court directed that,
in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
1
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
2
Id.
3
See Bickford v. International Speedway Corp., 654 F.2d
1028, 1031 (5th Cir. 1981).
5
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
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C. §
2254. A claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Id. at 2372 (footnote omitted). Heck requires the district court
to consider "whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated." Id. Because this case presents a potential Heck
problem, we must determine whether any of Housley's allegations
would imply the invalidity of a conviction or sentence that has not
been reversed, expunged, or declared invalid.
Review of Housley's pleadings reveals that the majority of his
allegations stem from a traffic stop in Lipscomb County, Texas on
November 4, 1990, and the resulting narcotics charge on September
5, 1991. From this incident come his allegations of an illegal
arrest without probable cause, an illegal search and seizure and a
taking of his property.
After Housley posted bond, he left Texas for Oklahoma, and was
then arrested in Oklahoma for possession of stolen goods and
possession of controlled substances. The gravamen of his complaint
with regard to this arrest appears to be that it was the result of
a conspiracy between the Lipscomb County, Texas and Washita County,
Oklahoma sheriffs. Oklahoma authorities then filed Fugitive from
Justice charges against Housley, alleging that he fled from the
6
State of Texas into the State of Oklahoma to avoid prosecution.
Again, Housley alleges that this was the result of a conspiracy
between the sheriffs to keep him illegally confined.
Housley was again released on bond and was subsequently
arrested in Custer County, Oklahoma for driving with a suspended
license. Housley was later convicted of the Washita County,
Oklahoma charges, and was confined under that sentence at the time
he filed his various pleadings.
In his last set of objections to the magistrate judge's second
supplemental Report and Recommendation, Housley advised the
district court that the Washita County, Oklahoma conviction had
been reversed and dismissed, and that only the complaint out of
Lipscomb County was pending. He stated that he was again being
held in the Lipscomb County jail. In his appellate brief, however,
Housley stated that the Lipscomb County case had been "decided in
[his] favor" on January 17, 1995, when the state court granted his
motion to suppress and dismissed the charges. The docket sheet
indicates that Housley was then returned to an Oklahoma state
prison. It does not appear, and Housley does not assert, that his
present confinement is related to the allegations in his § 1983
complaint.
Given that the Washita County, Oklahoma conviction was
reversed, and assuming, as Housley alleges, that the Lipscomb
County, Texas charges were dismissed, we find no Heck concerns that
would require the dismissal of Housley's complaint. Further,
Housley does not allege that his current confinement is related to
7
the allegations in his complaint. Therefore, we may address the
merits of Housley's complaint.
Housley alleged, in his initial complaint and in his responses
to the magistrate judge's orders to supplement his pleadings, that
the three defendant sheriffs conspired with each other and with
other officials to keep Housley's property, to maliciously
prosecute him, to illegally issue a fugitive from justice complaint
and to keep him illegally confined. Merely conclusional
allegations of conspiracy, however, will not support an action
under § 1983.4 Housley fails to state any factual basis to support
his charges of conspiracy.5 The district court provided Housley
with several opportunities to offer a more detailed set of factual
claims.6 As Housley failed to allege any facts to support his
allegations of conspiracy, the district court did not abuse its
discretion by dismissing his complaint as frivolous.7
4
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).
5
See Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986).
6
See Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994).
7
In Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), this
Court enunciated a heightened pleading standard "[i]n cases
against government officials involving the likely defense of
immunity," requiring "of trial judges that they demand that the
plaintiff's complaints state with factual detail and
particularity the basis for the claim which necessarily includes
why the defendant-official cannot successfully maintain the
defense of immunity." Id. at 1473. In Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, ___U.S.___,
113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517 (1993), the Supreme
Court held that a heightened pleading standard could not be
required of plaintiffs' § 1983 claims against municipalities,
expressly reserving the question whether a heightened pleading
standard was still permissible in a suit against an individual
government official. In Schultea v. Wood, ___ F.3d ___ (5th Cir.
8
Housley further contended that Lipscomb County sheriff's
deputies stopped him without probable cause and conducted an
illegal search and seizure. Housley contends that Sheriff Babitzke
is responsible for this alleged constitutional violation.
In order to state a claim under § 1983, a plaintiff must show
that the defendant deprived him of a right secured by the
Constitution and laws of the United States while acting under color
of state law.8 A defendant "must be either personally involved in
the acts causing the deprivation of a person's constitutional
rights, or there must be a causal connection between an act of the
[defendant] and the constitutional violation sought to be
redressed." Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983).
"Personal involvement is an essential element of a civil rights
cause of action." Thompson v. Steele, 709 F.2d 381, 382 (5th
Cir.), cert. denied, 464 U.S. 897, 104 S.Ct. 248, 78 L.Ed.2d 236
(1983). Because Housley has not shown that Sheriff Babitzke was
personally involved in the alleged illegal stop, search and
seizure, the district court did not abuse its discretion by
dismissing the complaint as frivolous.
March 9, 1995, No. 93-2186) (en banc) 1995 U.S. App. Lexis 4673,
this Court revisited Elliott and held that a complaint must rest
on more than conclusions alone, and that district courts may
order the plaintiff to file a reply tailored to an answer
pleading the defense of qualified immunity. Id. at *20. The
Court stated that it did not change procedures developed under §
1915(d), and that district courts retained the power to dismiss
claims based upon an indisputably meritless legal theory without
awaiting any responsive pleading to conduct its inquiry. Id. at
*21-22.
8
Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).
9
Further, although provided several opportunities by the
magistrate judge, Housley never expounded on the allegations in his
original complaint that the defendants violated his due process
rights, inflicted double jeopardy and cruel and unusual punishment,
denied him a speedy trial, falsely imprisoned him and held him
without bond and that the grand jury indictment was illegal.
Therefore, the district court did not abuse its discretion by
dismissing these claims as frivolous. In any event, because
Housley did not argue these issues in his appellate brief, they are
deemed abandoned on appeal.9
III.
For the reasons articulated above, the district court's §
1915(d) dismissal is AFFIRMED.
9
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
10