United States Court of Appeals,
Fifth Circuit.
No. 93-8354.
Moses MACIAS, Jr., Plaintiff-Appellant,
v.
RAUL A. (UNKNOWN), BADGE NO. 153, and Richard Gleinser, Captain,
Defendants-Appellees.
June 16, 1994.
Appeal from the United States District Court for the Western
Division of Texas.
Before WISDOM and BARKSDALE, Circuit Judges, HARMON,1 District
Judge.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal turns primarily on the extent to which we are
required to go beyond the allegations for an in forma pauperis, pro
se complaint, and speculate as to the facts that the plaintiff
might allege if given yet another opportunity to assert a
nonfrivolous claim. This civil rights action by Moses Macias, Jr.,
arises out of two traffic citations that he received, and was
dismissed pursuant to 28 U.S.C. § 1915(d). Because we hold that
the district court did not abuse its discretion in so doing, we
AFFIRM.
I.
Proceeding pro se and in forma pauperis, Macias filed his
complaint in March 1993, apparently attempting to state claims
arising from an incident that occurred in 1992, in Bexar County,
1
District Judge for the Southern District of Texas, sitting
by designation.
1
Texas, when he was stopped by a San Antonio police officer because
his automobile tail light was not operating, and given one or more
traffic tickets. As set forth below, neither Macias's description
of the events that transpired then, nor his claim for relief, is
clear. Of course, in determining whether the district court abused
its discretion in dismissing the complaint, we construe those
allegations liberally.
Macias's complaint, filed against (1) San Antonio officer Raul
A. (Unknown), Badge No. 153, (2) Police Captain Richard Gleinser,
and (3) Municipal Courts, San Antonio, Texas, alleged that he was
stopped by the officer because the right tail light lens of his car
was out; that he was unaware of the defective light until the
stop; and that liability insurance is not admissible, under the
Federal Rules of Evidence, as to whether that person acted
negligently. As relief, Macias requested that the decision of the
defendant be reversed; that he recover the cost of the action;
and that the court grant such other relief as it deemed
appropriate.
After his complaint was filed, Macias completed a
questionnaire provided by the magistrate judge to clarify his
allegations. In it, Macias was asked to "describe in detail the
facts and circumstances which substantiate the allegations" in the
complaint. Macias responded with the arguments that a person's
lack of knowledge is a defense to prosecution; that evidence of
liability insurance is not admissible under the Federal Rules of
Evidence; and that liability insurance is unconstitutional.
2
In response to the request to state "exactly what it is that
[Raul A.] either did or failed to do that you believe gives you the
right to recover judgment against him," Macias stated: "First of
all, Moses Macias, Jr. was [ ]unaware of any wrongdoing, and it is
a defense to prosecution. See 8.02, 8.03 Penal Code. Also,
Liability insurance is not a federal statute." And, in response to
the request to state what Captain Richard Gleinser did or did not
do, Macias stated:
Municipal Court issued a warrant for my arrest for two
tickets, improper lights tail lamp lens, and no valid
liability insurance. Since Captain Richard Gleinser signed
the warrant/capias pro fine Notice, I assume he should be
served or the Clerk of the Municipal Court, whichever is
proper.
When requested to describe his injuries, Macias stated:
Humiliation, Embarrassment, just because the lens was out. I,
Moses Macias, Jr., was ordered around to stand in different
positions, was also search[ed] outside the car without any
probable cause. Search and seizure laws are very strict. An
officer needs a warrant and the Warrant has to be specific on
where to search and the officers needs probable cause, an
affidavit made by oath, by a witness describing exactly where
to search.2
Macias stated further that the damages he sought were the result of
a policy, practice or custom of Bexar County, which he described as
"common law". When asked about a San Antonio policy, practice or
custom, Macias stated that "state law and federal law state that
there should be no unnecessary force, or excessive force, section
9.51. There should be no coercion".
2
Macias also cited a case, apparently as authority for his
claim for damages. That case, Sabich v. Outboard Marine Corp.,
60 Cal.App.3d 591, 131 Cal.Rptr. 703 (1976), is a products
liability action concerning all-terrain vehicles.
3
The magistrate judge recommended dismissal pursuant to §
1915(d), concluding that the two individual defendants were
entitled to qualified immunity, and that Macias had failed to
identify or make factual allegations of any policy, practice, or
custom by either San Antonio or Bexar County. The magistrate judge
concluded also that Macias named the wrong defendant in his
assertion of the unconstitutionality of the Texas requirement of
proof of liability insurance, and that Texas courts had upheld its
constitutionality.
Macias filed objections to the magistrate judge's report and
recommendation. Concerning the alleged search, he stated that
the officer violated statutory and constitutional rights by
searching Moses Macias, Jr. without any probable cause. An
officer needs a warrant and the warrant has to be specific, on
where to search and the officer needs probable cause, an
affidavit made by oath, by a witness describing exactly where
to search.
But, after de novo review, the district court accepted the
recommendation, and dismissed the complaint without prejudice.
II.
An IFP complaint may be dismissed as frivolous if it lacks an
arguable basis in law or fact. 28 U.S.C. § 1915(d); Denton v.
Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d
340 (1992). Section 1915(d) "accords judges not only the authority
to dismiss a claim based on an indisputably meritless legal theory,
but also the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless." Neitzke v. Williams, 490 U.S.
319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). And, in
4
determining whether the complaint is frivolous, the district court
is given broad discretion. Thompson v. Patteson, 985 F.2d 202, 205
(5th Cir.1993). We review such dismissals only for abuse of that
discretion. Denton, --- U.S. at ----, 112 S.Ct. at 1734.
Although we construe IFP complaints liberally, particularly
in the context of a § 1915(d) dismissal, we are still bound by the
allegations in the complaint, and are not free to speculate that
the plaintiff "might" be able to state a claim if given yet another
opportunity to add more facts to the complaint. In an effort to
ensure that IFP claims are developed adequately, our circuit has
encouraged district courts to hold hearings or provide
questionnaires to IFP plaintiffs. Parker v. Carpenter, 978 F.2d
190, 191 & n. 2 (5th Cir.1992). This opportunity to expand the
claims and underlying facts (with guidance from the district court
through questioning at a hearing or a questionnaire tailored to the
plaintiff's claims) limits our license to engage in speculation as
to the existence of additional facts. For example, if an IFP
plaintiff, in "amending" his complaint through a response to a
questionnaire, alleges in that response that he received inadequate
medical care while incarcerated, we should not reverse the
dismissal of the complaint on the basis that the plaintiff could
possibly add facts that would demonstrate that he was treated with
deliberate indifference in the medical care that he received. As
another example, if an IFP prisoner asserts in the questionnaire
response that he has been denied recreation time, we should not
reverse dismissal on the ground that he might also be able to
5
assert a claim that the denial was in retaliation for his having
filed a grievance.
Therefore, in considering this appeal, we keep in mind that
Macias amended his complaint by his responses to written questions
from the magistrate judge, questions that were specifically
tailored to elicit relevant facts that might support his claims.
And, Macias had an opportunity further to clarify his claims by his
objections to the magistrate judge's report and recommendation.
(But, as discussed infra, clarifying his claims in his objections
does not constitute amending his complaint.) Even construing these
matters liberally, as we must, they cannot be interpreted as
raising anything other than a frivolous claim.
Macias's brief on appeal (which is a copy of his two-page
objection to the report and recommendation) is, like his complaint,
vague and unclear. Read most favorably to him, he raises three
issues: (1) the propriety of qualified immunity in the context of
a Fourth Amendment claim; (2) the constitutionality of the Texas
statute requiring proof of automobile liability insurance; and (3)
the viability of his suit against the San Antonio Police
Department.3
A.
Macias maintains that the police officers cannot assert
qualified immunity as to the claimed illegal search. "Whether a
3
If he has previously asserted any other issues, they are
deemed abandoned on appeal. E.g., Beasley v. McCotter, 798 F.2d
116, 118 (5th Cir.1986), cert. denied, 479 U.S. 1039, 107 S.Ct.
897, 93 L.Ed.2d 848 (1987).
6
government official is entitled to qualified immunity generally
turns on the objective reasonableness of the action assessed in
light of the legal rules that were clearly established at the time
it was taken." White v. Taylor, 959 F.2d 539, 544 (5th Cir.1992)
(citations and internal quotations omitted). "A necessary
concomitant to the determination of whether the constitutional
right asserted by a plaintiff is "clearly established' at the time
the defendant acted is the determination of whether the plaintiff
has asserted a violation of a constitutional right at all."
Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114
L.Ed.2d 277 (1991). We have interpreted Siegert as first requiring
the determination whether the plaintiff has stated a constitutional
violation before reaching the qualified immunity issue. White, 959
F.2d at 545 n. 4.
Macias concedes that the officer was justified in making the
traffic stop, but apparently objects to a search that allegedly
took place in conjunction with the unobjectionable stop.4
Significantly, as described above, the search was not mentioned in
either his complaint or his response to the magistrate judge's
request that he state the facts supporting his claim. Further,
Macias did not attempt to describe the nature of the search in
either the objections to the report and recommendation or his
4
In his objection to the magistrate judge's report and
recommendation, as well as in his identical brief on appeal,
Macias states: "Sure[,] Officer Raul A. was justified in
stopping [me]...."
7
appeal brief.5 The only reference in any of the papers that Macias
has filed that could even possibly be interpreted as a description
of that search is one line in the questionnaire in his discussion
of his damages, where he stated that he "was ordered around to
stand in different positions, was also search[ed] outside the car
without any probable cause." If Macias ever attempted to state a
claim objecting to this "search", this is all the information that
he included about it.
It is well-established that, in a valid traffic stop (as
noted, Macias concedes its validity), an officer may request the
offender to exit the vehicle, Pennsylvania v. Mimms, 434 U.S. 106,
107, 98 S.Ct. 330, 331, 54 L.Ed.2d 331 (1977), and "request a
driver's license, insurance papers, vehicle registration, run a
computer check thereon, and issue a citation." United States v.
Shabazz, 993 F.2d 431, 437 (5th Cir.1993). Therefore, it is clear
that Macias has failed to allege a constitutional violation with
respect to the stop of his vehicle, the possible request for proof
of liability insurance, or the possible order that he exit his
vehicle.6
5
Even if Macias had offered additional facts in his
objections, those facts would not constitute an amendment to his
complaint or otherwise remedy the flaws discussed herein. Macias
was provided with ample opportunity to explain the factual basis
of his claims through the questionnaire. Section 1915(d) does
not require that these opportunities must repeatedly be made
available. See Graves v. Hampton, 1 F.3d 315, 318 n. 12 (5th
Cir.1993) (distinguishing Rule 12(b) dismissal which generally
requires opportunity to amend).
6
We note that, in light of the ambiguities contained in the
complaint, as amended, we cannot say for certain that Macias was
in fact requested to present proof of liability insurance or that
8
The only question remaining, then, is whether Macias has
stated a constitutional violation with his bare reference to an
improper "search". Again, his complaint did not mention the
search; neither did he address it in response to the magistrate
judge's inquiry as to the facts supporting his claim. Therefore,
based solely on these two items, we could conclude that Macias has
not even attempted to assert any Fourth Amendment claim.
It was only in the context of describing his damages that, in
the questionnaire, Macias even alluded to the alleged "search" and
then provided absolutely no factual details. The bare allegation
of a search is conclusory and does not support an action under 42
U.S.C. § 1983. See Wilson v. Budney, 976 F.2d 957, 958 (5th
Cir.1992). Indeed, it is only because we are construing Macias's
pleadings liberally that we even consider whether this issue has
been raised in the pleadings. In light of the various
opportunities that Macias had to illuminate his claim that he was
"searched", and his failure to provide any more than the bare
allegation that a "search" occurred, we conclude that he has not
asserted a constitutional violation. Accordingly, the district
court did not abuse its discretion in dismissing this claim.
B.
Macias next argues that the Texas statute requiring proof of
automobile liability insurance is unconstitutional because no
federal law or constitutional provision addresses the issue and
he was ordered to leave the vehicle. In any event, if Macias
attempted to state a non-frivolous claim on these points, he has
not done so.
9
because that statute restricts his freedom to purchase. See
Tex.Rev.Civ.Stat. art. 6701h (West Supp.1993). Needless to say,
the authority of a State to create and enforce its laws and
regulations under its police power is well-established. See, e.g.,
Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.
303 (1926) (discussing scope of police power in context of zoning
ordinance); Texas Learning Technology Group v. Commissioner, 958
F.2d 122, 124 (5th Cir.1992) (power to tax, power of eminent domain
and police power are generally acknowledged sovereign powers). The
Texas courts have specifically upheld the insurance statute as
being a proper exercise of that power. Riggle v. State, 778 S.W.2d
127, 129-30 (Tex.App.1989).
As for the assertion concerning Macias's right to choose,
"[t]here exists no constitutional protection of any freedom of
choice regarding the decision to purchase or not [to] purchase
automobile liability insurance." Hardin v. Texas, 983 F.2d 1064
(5th Cir.1993) (unpublished). This claim clearly lacks an arguable
basis in law; the district court did not abuse its discretion in
dismissing it.
C.
Macias's brief on appeal can also be read to challenge the
district court's dismissal of his claims against the San Antonio
Police Department. In order to establish liability on the part of
this defendant, Macias was required to "demonstrate a policy or
custom which caused the constitutional deprivation." Colle v.
Brazos County, 981 F.2d 237, 244 (5th Cir.1993). One that would
10
satisfy this element of proof is a "policy statement, ordinance,
regulation, or decision that is officially adopted and promulgated
by the municipality's lawmaking officers or by an official to whom
the lawmakers have delegated policy-making authority." Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc).
Macias, however, has not identified any;7 his claim against the
City, therefore, has no arguable basis in fact. The district court
did not err in dismissing this claim.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
WISDOM, Circuit Judge, dissenting in part:
I respectfully dissent from part II.A of the majority's
opinion. In this part the Court holds that Macias's Fourth
Amendment claim was frivolous. The majority's primary rationale is
that Macias's factual allegations about the search did not appear
in his original complaint or in his response to the magistrate
judge's request that he state the facts supporting his claim. The
majority acknowledges that Macias complained about the search in
another part of his response to the magistrate's questionnaire, but
discounts his claim because he did not press it on the pages where
the majority expected to find it. The facts Macias pleads, not the
7
In response to the magistrate judge's questionnaire, Macias
said that his damages were the result of a policy, practice or
custom of San Antonio, but identified that policy as a
prohibition against excessive force by state and federal law.
Such a policy certainly did not cause his alleged constitutional
deprivation.
11
page on which he pleads them, should control.
With deference, I disagree with the majority's statement that
Macias made only a "bare allegation" of a search. Macias alleges
that he was searched,1 after a traffic stop,2 without a warrant or
probable cause,3 by an officer he identified by name, badge number,4
and physical description,5 as a result of which he was not arrested6
or charged with any crime.7 These factual allegations are not "
"fanciful,' ... "fantastic,' ... "delusional,' ... irrational or
... wholly incredible...."8 To describe these statements as a
"bare allegation"9 of a search is not, in my opinion, consistent
1
Court's Questionnaire to Plaintiff at 7, Rec. 26.
2
Id. at 2, Rec. 21.
3
Id. at 7, Rec. 26.
4
Id. at 6, Rec. 25.
5
Id. at 5, Rec. 24.
6
Id. at 4, Rec. 23.
7
Id.
8
Denton v. Hernandez, 504 U.S. ----, ----, 112 S.Ct. 1728,
1733, 118 L.Ed.2d 340, 350 (1992) (citations omitted).
9
The precedential basis of majority's "bare allegation"
jurisprudence is unpersuasive. The majority's assertion that
"[t]he bare allegation of a search is conclusory and does not
support an action under 42 U.S.C. § 1983", supra at 4692, cites
only Wilson v. Budney, 976 F.2d 957 (5th Cir.1992), as supporting
authority. Wilson was a two-paragraph opinion that cited only
Hale v. Harney, 786 F.2d 688 (5th Cir.1986), for the same
proposition. Hale, however, was neither a pro se case nor an in
forma pauperis proceeding, and thus was not subject to the rule
that a plaintiff's allegations must be liberally construed in his
favor. Wilson 's analogy to Hale was ill-considered, an error
the majority compounds today by extending it beyond the
conspiracy context.
12
with the Court's duty to construe liberally the pleadings in
Macias's favor.10
The Fourth Amendment forbids unreasonable searches. Because
Macias was never arrested, the police officer's search cannot be
excused as incident to arrest. It must therefore be analyzed under
the framework of Terry v. Ohio.11 If the officer lacked probable
cause or a warrant for the search, he may have violated Macias's
constitutional rights and will be answerable in damages under §
1983 for the violation.12 The Fourth Amendment and Terry provide
the arguable basis in law in which Macias's allegation of a search
grounds itself. Because his complaint states a claim with an
arguable basis in law, and because the facts he pleaded in support
of that claim are not "fanciful" or "delusional", I would hold that
the district court abused its discretion in dismissing Macias's
Fourth Amendment claim as frivolous.13
I respectfully dissent.
10
Pro se complaints "however inartfully pleaded are held to
less stringent standards than formal pleadings drafted by
lawyers". Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66
L.Ed.2d 163 (1980) (internal quotations and citation omitted).
They must be "liberally construed". Id. at 10, 101 S.Ct. at 176.
11
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We have
repeatedly confirmed the applicability of the Terry analysis to
searches for which the police lack probable cause. See, e.g.,
United States v. Shabazz, 993 F.2d 431, 434-35 (5th Cir.1993);
United States v. Rideau, 969 F.2d 1572, 1573-74 (5th Cir.1992)
(en banc).
12
See, e.g., Timberlake v. Benton, 786 F.Supp. 676
(M.D.Tenn.1992).
13
Gartrell v. Gaylor, 981 F.2d 254, 258-59 (5th Cir.1993).
13
14