Housley v. Sheriff, Lipscomb

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should not be published.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

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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