United States Court of Appeals,
Fifth Circuit.
No. 95-20232.
Eric Victor ESTEVES, Plaintiff-Appellant,
v.
Leslie BROCK; Harris County, Defendants-Appellees.
Feb. 28, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
Before POLITZ, Chief Judge, and REYNALDO G. GARZA and JONES,
Circuit Judges.
POLITZ, Chief Judge:
Eric Victor Esteves appeals the dismissal of his 42 U.S.C. §
1983 action seeking damages against Harris County and assistant
district attorney Leslie Brock for her use of peremptory challenges
to exclude three African Americans from the jury in his criminal
trial. Concluding that Brock has absolute prosecutorial immunity
from personal liability and that prosecutorial actions taken by
district attorneys on behalf of the State of Texas cannot be
attributed to Harris County, we affirm.
Background
Esteves, an African American, filed a pro se complaint
alleging that Brock, while acting as Assistant District Attorney
for Harris County, violated his right to equal protection of the
laws by excluding blacks from a jury which convicted him of
aggravated robbery. Esteves alleged that Harris County is liable
for Brock's actions because they were taken pursuant to a county
1
custom of excluding blacks from juries.
In Esteves v. Texas,1 Esteves' conviction was reversed upon a
finding that Brock had used peremptory challenges to strike three
blacks from the jury in violation of Batson v. Kentucky.2 On
retrial Esteves was convicted a second time, and the conviction was
affirmed on appeal.3
Esteves' section 1983 action seeks damages and a declaratory
judgment that his civil rights were violated. Brock and Harris
County filed Fed.R.Civ.P. 12(b)(6) motions to dismiss the action.
Brock contended that she had absolute immunity from suit under the
doctrine of prosecutorial immunity; she also asserted that Esteves
could not file a civil claim for violation of Batson. Harris
County's motion contended that because Brock was not a final
policymaker for the county, it could not be sued for her actions
either directly or on the basis of respondeat superior. The
district court dismissed with prejudice Esteves' cause of action as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) on the basis that the
sole remedy for a Batson violation is a new trial, not compensatory
damages. Esteves timely appealed.
Analysis
A trial court judgment can be affirmed on appeal for reasons
1
859 S.W.2d 613 (Tex.App.—Houston [1st Dist.] 1993, writ
ref'd).
2
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
3
Esteves v. Texas, No. 01-94-821-CR, 1995 WL 149270
(Tex.App.—Houston [1st Dist.] April 6, 1995, no writ).
2
other than that relied upon at the trial level.4 Because neither
an assistant district attorney nor a county can be held liable for
prosecutorial actions taken on behalf of the state in the course of
judicial proceedings, we affirm the district court's dismissal of
this case on the ground that the complaint fails to state a claim
upon which relief can be granted.5 Accordingly, we need not
address the holding that a new trial is the exclusive remedy for
the racially discriminatory use of peremptory challenges in
violation of a criminal defendant's fourteenth amendment rights.
Claims Against Brock
A prosecutor enjoys absolute immunity from personal liability
for damages under section 1983 for actions "initiating a
prosecution and ... presenting the State's case" and those
"intimately associated with the judicial phase of the criminal
process."6 All of Brock's actions of which Esteves complains
occurred during Esteves' criminal trial. Because Brock's use of
peremptory strikes in a racially discriminatory manner was part of
her presentation of the state's case, she is entitled to absolute
immunity from personal liability.
If the complaint is construed to include a claim against
Brock in her official capacity, the claim is merely "another way of
4
Terrell v. University of Tex. Sys. Police, 792 F.2d 1360 (5th
Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d
997 (1987).
5
Fed.R.Civ.P. 12(b)(6).
6
Imbler v. Pachtman, 424 U.S. 409, 430-431, 96 S.Ct. 984, 995,
47 L.Ed.2d 128 (1976).
3
pleading an action against an entity of which an officer is an
agent."7 Inasmuch as the complaint alleges that Harris County
should be held liable for Brock's actions, we consider the claim
against Brock in her official capacity as a claim against Harris
County.8
Claims Against Harris County
Under 42 U.S.C. § 1983, a county cannot be held liable on a
theory of respondeat superior merely because it employs a
tortfeasor. A county may be liable, however, for harm caused by
the execution of an official policy or custom that deprives
individuals of their constitutional rights.9 Local governmental
liability can be based on the existence of a persistent, widespread
practice which, although not officially promulgated, is "so common
and well settled as to constitute a custom that fairly represents
municipal policy."10 According to Esteves, the Harris County
District Attorney's Office maintains a persistent and widespread
practice of using peremptory challenges to exclude African
7
Monell v. Dep't of Social Services, 436 U.S. 658, 690 n. 55,
98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978).
8
Ashe v. Corley, 992 F.2d 540 (5th Cir.1993). We ultimately
conclude herein that Brock acted on behalf of the state rather than
the county in exercising peremptory challenges. As a state officer
acting in her official capacity, however, Brock is protected by the
eleventh amendment from suit under section 1983 for money damages.
Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct.
2304, 105 L.Ed.2d 45 (1989); Chrissy F. v. Mississippi Dep't of
Public Welfare, 925 F.2d 844 (5th Cir.1991).
9
Monell.
10
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.1984)
(en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d
612 (1985).
4
Americans from juries. Because of this "policy," Esteves alleges,
the county can be held liable for Brock's unconstitutional actions
during his criminal trial.
We are not persuaded. Assuming for the purposes of the
Fed.R.Civ.P. 12(b)(6) motion that the allegation of a widespread
practice of discrimination is true, in exercising peremptory
challenges Brock and the Harris County District Attorney were
acting not as county officers but as advocates for the state,
prosecuting violations of Texas criminal law. The alleged
discriminatory practices are not fairly attributable to Harris
County because they are actions taken by agents of the state as
part of the prosecutorial function.
Whether an individual defendant is acting on behalf of the
state or the local government is determined by state law11 and by
an analysis of the duties alleged to have caused the constitutional
violation.12 In Crane v. Texas,13 we recognized that under Texas law
a district attorney primarily has attributes of a county officer,
including payment by local funds and election by the voters of the
district, which usually includes one county. We also recognized,
however, that Texas law treats district attorneys as state
officials in many ways: their offices are created by the Texas
Constitution, they are subject to discipline by a state
11
See Chrissy F.
12
Echols v. Parker, 909 F.2d 795 (5th Cir.1990).
13
766 F.2d 193 (5th Cir.), cert. denied, 474 U.S. 1020, 106
S.Ct. 570, 88 L.Ed.2d 555 (1985).
5
administrative body, and interim vacancies are filled by the
Governor.
Texas law makes clear, however, that when acting in the
prosecutorial capacity to enforce state penal law, a district
attorney is an agent of the state, not of the county in which the
criminal case happens to be prosecuted. "Each district attorney
shall represent the State in all criminal cases in the district
courts of his district and in appeals therefrom...."14 In Echols
v. Parker we found that a Texas district attorney is a state
official when instituting criminal proceedings to enforce state
law. A county official "pursues his duties as a state agent when
he is enforcing state law or policy."15 In Krueger v. Reimer16 we
found that the actions of a Texas district attorney within the
scope of his prosecutorial function during a criminal proceeding do
not constitute official policy for which a county can be held
liable.
Because the use of peremptory challenges during a judicial
proceeding is an integral part of the prosecutorial function of
enforcing state criminal law, these actions cannot fairly be
attributed to the county. Given that a district attorney
represents the state in criminal prosecutions, the county, which
14
Tex.Code Crim.Proc.Ann. art. 2.01; Tex. Const. art. V, § 21;
Tex.Gov't Code Ann. § 43.180(b) ("The [Harris County] district
attorney shall represent the state in criminal cases pending in the
district and inferior courts of the county.").
15
909 F.2d at 801.
16
66 F.3d 75 (5th Cir.1995).
6
has no affirmative control over the prosecutor's decisions in a
particular case, should not be held liable when a prosecutor
engages in unconstitutional conduct during a criminal proceeding.
In the instant matter, Brock was enforcing state law criminalizing
robbery when she engaged in the conduct which violated Esteves'
constitutional rights. We hold that in exercising peremptory
challenges in the course of a judicial proceeding instituted to
enforce state law, a district attorney is not acting as a county
official for whose actions the county bears responsibility. As a
result, Harris County cannot be held liable for Brock's actions.
Our decision today does not absolve a county of all
responsibility for the actions of a district attorney in the
performance of his or her duties. For those duties that are
administrative or managerial in nature, the county may be held
liable for the actions of a district attorney who functions as a
final policymaker for the county.17
AFFIRMED.
17
Cf. Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980)
(determining that a county can be liable for nonjudicial actions
taken by a judge in his role as final policymaker for the county).
7