Steven Perez v. USA

481 F. App'x 203
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 19, 2012
Docket11-41362
StatusUnpublished
Cited by6 cases

This text of 481 F. App'x 203 (Steven Perez v. USA) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steven Perez v. USA, 481 F. App'x 203 (5th Cir. 2012).

Opinion

PER CURIAM: *

Steven Perez, Texas prisoner # 1514617, appeals the dismissal of his civil rights action against various state and federal defendants, including the United States of America, Judge Janis Jack, Nueces County, the Corpus Christi Police Department, Judge Sandra Watts, Judge Manuel Banales, Justice of the Peace Henry Santana, Detective Ralph Lee, the Chief of the Corpus Christi Police Department during 2007 and 2008, the Sheriff of Nueces County during 2007 and 2008, Gale Gleimer, Jennifer Dorsey, Patsy Perez, Douglas Mann, Sylvia Jasso, Tiffany Garza, Sara Rivera, Olivia Aguilar, Roger Perez, Carlos Valdez, Mark Skurka, Chief Justice Rogelio Valdez, J.J. Garcia, Justice Rose Vela, Justice Nelda Rodriguez, Justice Dori Contreras Garza, Harley Lappin, Prosecutor Norman, Warden Monroe, and Rick Thaler. In his brief, Perez fails to include any discussion, either by name or title, of Santana, Jasso, Valdez, Vela, Rodriguez, Garza, Lappin, Monroe, and Thaler. He has, therefore, abandoned any challenge to the dismissal of his claims against these defendants. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).

As to the United States, the district court dismissed Perez’s claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on the ground that the United States had not waived sovereign immunity. This court reviews such dismissals de novo. Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir.2005).

“‘[T]he United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued.’ ” Smith v. Booth, 823 F.2d 94, 96 (5th Cir.1987) (citation omitted). The burden of establishing a waiver of sovereign immunity rests with the party attempting to sue the United States. See Taylor-Callahan-Coleman Counties Dist. Adult Prob. Dep't v. Dole, 948 F.2d 953, 956 (5th Cir.1991). Perez does not seek relief under the Federal Tort Claims Act and has not identified any other applicable provision waiving sovereign immunity. He has not established a waiver.

As to Judge Jack, the district court dismissed Perez’s claims pursuant to Rule 12(b)(6) for failure to state a claim based on judicial immunity. This court reviews such dismissals de novo. Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir.2011).

“[Jjudicial immunity is an immunity from suit, not just from the ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Such immunity is not overcome by allegations of bad faith and “applies even when the judge is accused of acting maliciously and corruptly.” Id. The actions taken by Judge Jack took place during Perez’s revocation proceedings and thus were judicial in nature; moreover, Perez has alleged no facts to support a *206 finding that Judge Jack took any actions outside of her jurisdiction. See id. at 11-12, 112 S.Ct. 286. Although absolute immunity does not extend to suits for injunc-tive or declaratory relief, see Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 925 F.2d 844, 849 (5th Cir.1991), Perez has failed to state a claim upon which relief may be granted, and his claim is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i), (ii); 28 U.S.C. § 1915A(b)(1).

As to Judge Sandra Watts and the defendant prosecutors, the district court dismissed Perez’s claims pursuant to § 1915(e)(2)(B)(iii) and § 1915A(b)(2) based on judicial immunity. Following a de novo review, we find no error in the district court’s dismissal of Judge Watts, see Mireles, 502 U.S. at 11-12, 112 S.Ct. 286, and the prosecutors, Esteves v. Brock, 106 F.3d 674, 677 (5th Cir.1997).

We next consider Perez’s argument that Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), should not bar his claim that Detective Ralph Lee seized his Cadillac without a warrant and never gave it back. The unauthorized intentional deprivation of property does not constitute a constitutional violation as long as the state provides a meaningful post deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The complainant bears the burden of establishing that the state’s post deprivation remedy is inadequate. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996). In Texas, the tort remedy of conversion is available for a complainant to seek redress for any alleged property loss. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994). Perez has not asserted that he attempted to seek redress in state court or that the state remedy was inadequate; thus, his claim is unavailing.

Perez’s allegations that the Nueces County Sheriff and the jail librarian denied him access to the library and to the courts do not implicate the validity of his conviction. Prisoners have a constitutional right under the First Amendment to access the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). This right includes access to a law library or other legal assistance. Id. at 828, 97 S.Ct. 1491. To prevail, a prisoner must demonstrate an actual legal injury stemming from the defendants’s conduct. See Lewis v. Casey, 518 U.S. 343, 351-52, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Perez has not made this showing. See id.

As to the remaining defendants, we conduct a de novo review of the district court’s dismissals under § 1915(e)(2)(B) and § 1915A(b). Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

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481 F. App'x 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-perez-v-usa-ca5-2012.