Edwin C. Covington v. Aubrey Cole, Individually and in His Official Capacity as Sheriff of Jaspercounty, Texas

AINSWORTH, Circuit Judge,

dissenting:

Edwin C. Covington, an inmate of the Texas Department of Corrections at Huntsville, has filed this pro se 42 U.S.C. § 1983 suit for damages in the amount of $300,000 against the Sheriffs and District Attorneys of Jasper and Angelina Counties, Texas, and other law enforcement officials in these counties. His complaint alleges that on January 5, 1974, he was arrested on Route 63, in the company of a friend, by the Jasper County Sheriff and his Deputy who apprehended him and friend for the armed robbery of a store some distance back on the highway. Covington’s complaint also *1374 alleges that at the time of the arrest he was subjected to racial slurs by the police officials, that his arrest without a warrant was illegal, and that he was falsely imprisoned. Further, the complaint alleges that on the date of his arrest, January 5, 1974, one of the defendants, Chief of Police Dewey Wolfe, of Diboll, Texas, illegally searched his home without a warrant and placed plaintiff’s wife and daughter in great fear. The complaint further states that he was compelled to give a polygraph test, that he was illegally moved to the Angelina County Jail, that defendant Sheriffs and District Attorneys conspired to use false testimony against him for the purpose of prejudicing the jurors and to deny plaintiff a fair trial, that defendant Sheriffs gave false and prejudicial testimony against him in open court. The allegations of wrongdoing against the defendant officials are mainly cast in Vague and conclusory terms.

Nowhere in any of the pleadings, papers, or briefs of appellant Covington does he unequivocally allege or contend that he is innocent of the robbery charges for which he was convicted.

According to uncontradicted information supplied to this Court by the District Attorney of Jasper County 1 and by Mrs. Edwin C. Covington 2 who styles *1375 herself as “attorney in fact” for her husband, plaintiff Covington is serving cumulative sentences of sixty years’ imprisonment in the Texas State Prison at Huntsville on convictions of aggravated robbery in Jasper County and robbery in Angelina County.

The present suit was filed by Mrs. Covington as “attorney in fact” for plaintiff without prepayment of costs with an accompanying affidavit of Mrs. Covington that her husband is unable to pay the costs, but without a pauper affidavit by Covington himself and without a prior order of the District Judge authorizing the commencement of the suit as required by 28 U.S.C. § 1915 . 3

Accordingly, the District Judge sua sponte correctly dismissed the suit on the written report and recommendation of the United States Magistrate for failure to comply with the provisions of section 1915(a) because the pauper affidavit was not personally signed by Covington as required by the section and because no order of the District Court had been previously obtained authorizing commencement of the action. Additionally, the Magistrate and the Court concluded that the complaint failed to state a cause of action on which relief could be granted.

The District Court denied the request for certificate of probable cause filed by Covington and held that the action of plaintiff was designed to harass numerous public officials in various counties of the State of Texas wherein petitioner has been incarcerated and that the Court has the duty to protect the officials from such harassment.

The majority now decrees that the District Court’s judgment summarily dismissing the pro se complaint is erroneous and must be reversed; further, that the case must be remanded for further development at the trial level; and that on remand Covington should be permitted to file a new affidavit in support of his request to proceed in forma pauperis. The majority cites one allegation from Covington’s complaint, i. e., the alleged warrantless search of Covington’s home, as “amply specific to conjure visions of an actionable violation of Covington’s fourth amendment rights.” This allegation is found in paragraph 12.e of the complaint where it is stated that Diboll Chief of Police Wolfe illegally searched plaintiff’s home on the day of his arrest. How Chief Wolfe’s alleged search relates to the possible civil liability in damages of numerous other defendants, Sheriffs, District Attorneys, etc., is not stated by the majority, nor is any reason apparent. But these defendants remain in the case nevertheless, under the majority opinion. The majority ignores this critical factual circumstance and then concludes that “Having determined that the plaintiff has stated a claim upon which relief can be granted with respect to the alleged search, we must remand the case to the district court.” The majority’s conclusion is therefore somewhat confused since the search is alleged to have been made only by the defendant Wolfe, and no allegation thereof pertains to the other defendants.

It is important to remember that Covington is now lawfully incarcerated under two Texas state convictions for robbery after jury verdicts of guilty. The *1376 record does not reveal that he has filed any action to vacate or set aside these convictions by writ of habeas corpus or otherwise. Accordingly, sanction of his section 1983 damage suit against the law enforcement officials here is opposed in principle to our previous holding in Shank v. Spruill, 5 Cir., 1969, 406 F.2d 756 , where we declined to permit a section 1983 suit by a prisoner against the State of Georgia and two county policemen, holding that the claim “would fail because so long as the Georgia conviction stands the arrest must be viewed as proper.” Id. at 757 . See also Alexander v. Emerson, 5 Cir., 1973, 489 F.2d 285 ; Jones v. Bales, N.D.Ga.1972, 58 F.R.D. 453, 460-466 , aff’d, 5 Cir., 1973, 480 F.2d 805 , to the same effect. Though the majority acknowledges the applicability of this circuit’s rule of law in such suits, expressed above, it declines to apply it here because, it says, “nothing in the meager record before us informs us of the charge or charges upon which Covington was convicted.” Footnoted to this statement of the majority is the concession, however, that “Covington was convicted of something, because he is now in jail.”

A reading of the complaint makes it abundantly certain that Covington seeks civil damages growing out of his convictions in Jasper and Angelina Counties, Texas, and that the principal defendants are the Sheriffs and District Attorneys of these counties who are charged with conspiring to bring about that result. The uncontradicted statements of the District Attorney of Jasper County and of Mrs. Covington in her letters and documents filed with the Court show this beyond doubt. Appointed counsel for Covington 4 likewise affirmatively states in his brief (pp. 12-13) that this is true. He writes:

“ . . . it is reasonably clear that Covington’s complaint embodies a charge of conspiracy by the Appellees to obstruct justice and to deny him the equal protection of the laws by convicting him with perjured testimony, with an implicit underlying racial bias as a motivation.”

The majority in its footnote 19 rejects the suggestion first noted in footnote 1, supra, of this dissent — that we should take cognizance of uncontradicted facts or supplement the record to avoid remanding this action. The majority states that “Rarely indeed should an appellate court order a record supplemented, especially for the determination of facts which should have been determined by the trial court.” The majority’s statement is erroneous for there are numerous instances where this circuit and other circuits have done so. See United States v. Theriault, 5 Cir., 1976, 526 F.2d 698 , where we retained jurisdiction and directed a limited remand to the district court to supplement the record with a statement of the reasons why the court permitted the appellant to be tried before a jury in shackles. Numerous additional examples are referred to in the Theriault opinion. In this case supplementing the record would avoid the wasteful procedure of remand and conserve essential judicial time of both the District Court and this Court.

Suits of this kind for monetary damages against law enforcement officials should not be authorized when the convictions upon which the asserted allegations are founded stand unassailed. The District Judge correctly refused to go along. To sanction such a collateral attack against the state convictions by a suit against the law enforcement officials who convicted plaintiff can only serve to denigrate our criminal justice system and promote malicious and frivolous actions against those charged with the duty of apprehending and punishing malefactors against society. Our holdings in Shank v. Spruill, supra; Alexander v. Emerson, supra, and Jones v. Bales, supra, recognized the impropriety of such actions for damages. But the *1377 majority of this panel declines, at this point, to follow the rulings of this Court and the principles there stated by indulging in judicial niceties of due process and requiring the remand of the case for further proceedings.

The circumstances presented make it apparent that the instant damage suit is frivolous and intended to harass the duly constituted law enforcement officials. It should not be tolerated by this Court. As we said in Alexander v. Emerson, where we quoted with approval the holding of the United States District Court for the Western District of Virginia in Smith v. Logan :

“‘ * * * [I]t would be improvident for a federal court to entertain a suit for damages inquiring into possible constitutional violations committed during the trial, while the petitioner is imprisoned on that conviction. * * State prisoners may have the constitutional violations of their trial remedied by habeas corpus proceedings. In those proceedings the courts can afford the best relief — namely release from custody. In order to adjudicate petitioner’s claim for damages this court would be required to hold the same hearings and make the same determinations as necessary on habeas corpus. To allow this suit is to say that every state prisoner may attack the alleged constitutional violations of his trial by two different methods— first, by habeas corpus for release from custody and secondly, by § 1983 for damages. I can find no justification for vastly expanding the burdens on the federal courts by permitting this duplicity of actions. The method for adjudicating these claims is habeas corpus and it is in those proceedings that prisoners may obtain the most adequate remedy.’ ”

Id. at 286.

Likewise pertinent to our dissenting views is this Court’s holding'in Parsell v. United States, 5 Cir., 1954, 218 F.2d 232, 235 , where we quoted with approval from Higgins v. Steele, 8 Cir., 1952, 195 F.2d 366, 369 , as follows:

“ . . . there is no reason why a respondent in a patently frivolous proceeding should be called upon to make a return or answer, or why an appeal in forma pauperis should be allowed a petitioner from an order dismissing such a proceeding or denying the relief prayed for.”

Federal courts of the nation have been inundated in the last decade with numerous prisoner petitions of all kinds, a great majority of which are either minor or frivolous, some even malicious. As a consequence, we . have been considerably impaired in our efforts to give proper attention to those cases which involve serious contested issues of fact and law. The Chief Justice of the United States pointed out in his year-end report on January 3, 1976 (American Bar Journal, February 1976, Vol. 62, at 190), that in the last fiscal year, of a total of 117,000 civil cases filed in the federal courts, 19,-000 were petitions from federal prisoners and 14,260 were petitions from state prisoners. This is a total of 33,260 prisoner petitions, or 28.4 per cent of the total civil docket. As we know from our own experience, most of such suits are without merit and do not warrant relief. We must continue to give the most careful consideration to those cases which merit our attention. But surely this is not such a ease.

I would, therefore, affirm the judgment of the District Court.

. The brief of Jasper County District Attorney Bill A. Martin, counsel for appellees, states:

“The Appellant Covington , and another State defendant were arrested while attempting to escape from an aggravated robbery in Jasper County, Texas. They were in an automobile and the Appellee, Sheriff Cole, along with Deputy Sheriff Causey Weaver were in hot pursuit. The officers received a call telling of the robbery. The officers captured the man and found a gun at the feet of Covington. By running the number of the gun through N.C.I.C. and T.C. I.C. it was found that the gun was listed as stolen in Angelina County. Appellant and his companion were given their rights, taken to a Justice of the Peace in Jasper County, again warned of their rights by the Judge after the charges were made. Charges were brought against Covington and his companion in Angelina County for robbery and they were convicted. Charges were brought in Jasper County for aggravated robbery against both participants and they were convicted. The facts in the latter case showed that the Appellant fired the recovered weapon into the fact [face] of the victim in the Jasper County robbery, missing by less than an inch and then only because the victim dodged to one side. Further, it is shown that the Appellant went with the officers and assisted in the recovery] of some of the loot that was tossed from the window of the car when the officers were chasing them.”

. Mrs. Covington in a letter dated November 26, 1975 to Judge Goldberg, copies of which were furnished to this panel, states in part:

“In April Edwin was trialed [sic] by a jury of twelve people for aggravated robbery in Lufkin, Texas. During this trial Sheriff Aubrey Cole, one of his deputies Mr. Causey Weaver and Mr. Clarence T. Morgan the owner of the grocery store, all of Jasper crossed the county line and came to Lufkin to testify in behalf of the state against Edwin. The testimonies that they gave were slanderous, prejudicial and in no way related to the incident that he was being trialed [sic] for. They were really testifying to the Jasper offense in the Lufkin trial. Edwin was judged- guilty and sentenced to thirty (30) years at the Department of Corrections in Huntsville, Texas.

“One year later when we thought that both trials were over since all testimonies for both offenses were given at the Lufkin trial, Edwin was bench warranted from Huntsville, Texas to Jasper, Texas to face trial for the Jasper offense. It was the month of January. We just didn’t understand it. A week before the trial we found .out that an attorney from Jasper would represent him.

“I spoke to the attorney once. He said that he knew nothing about the case except for what he had heard from outside people and read in the newspaper. My husband didn’t get to talk to him or know what he even looked like until the day of the trial. The same people that testified in the Lufkin trial testified again to a jury of twelve in Jasper. Their testimonies were the same also mentioning to the jury about the Lufkin deal. There was no way that Edwin could receive a fair trial. He was judged guilty and sentenced to thirty (30) more years in the Texas Department of Corrections at Huntsville, Texas.”

Though the above information was not in the record below, it is undenied and we should either take cognizance of uncontradicted facts or have the record supplemented to avoid the necessity of remanding this action.

. 28 U.S.C. § 1915 reads in pertinent part as follows:

(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress.

An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

(d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

. Counsel was appointed on appeal by a member of this Court to represent Covington in this section 1983 damage suit. There is no statutory provision authorizing compensation to counsel for his services in this civil damage suit, as there is in habeas corpus proceedings.