Ulysses Perez v. Lorie Davis, Director
690 F. App'x 200
| 5th Cir. | 2017Background
- Ulysses A. Perez, a Texas prisoner, appealed the district court’s dismissal of his 42 U.S.C. § 1983 suit as frivolous and for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
- Perez alleged a special prosecutor knowingly charged him with possessing a nonexistent cellphone (Texas Penal Code § 38.11(j)), asserting malicious prosecution and related due-process claims.
- Perez also challenged a prison disciplinary conviction and asserted misconduct by several MCU officials (Sergeant Mayer, Captains Strolli and Benavidez, Major Barber), and an unnamed MCU grievance investigator who allegedly gave false statements at his disciplinary hearing.
- He sought to hold the MCU Warden and Director William Stephens liable based on supervisory liability and alleged they signed off on grievances.
- The state criminal case against Perez was dismissed for prosecutorial misconduct, but the dismissal was not on the merits; Perez’s prison disciplinary conviction has not been invalidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether malicious-prosecution claim under §1983 is actionable | Perez: prosecutor maliciously prosecuted him for a nonexistent phone, violating §1983 | Defendants: malicious prosecution alone is not a federal constitutional claim | Dismissed — freestanding malicious prosecution fails under Castellano v. Fragozo |
| Whether Heck bars claims attacking prison disciplinary conviction | Perez: state dismissal for prosecutorial misconduct satisfies Heck and permits §1983 challenge | Defendants: state dismissal was not merits-based; success would imply invalidity of disciplinary conviction | Barred by Heck/Edwards because disciplinary conviction not invalidated |
| Whether supervisory liability attaches to Warden/Director | Perez: Warden/Director liable for subordinates and for signing grievances | Defendants: no vicarious liability under §1983; signing grievances insufficient to show personal involvement | Rejected — supervisory liability requires personal involvement, respondeat superior not allowed |
| Whether appellate review includes newly raised investigator-claim and other unbriefed issues | Perez: complains investigator lied at hearing; raises other claims on appeal | Defendants: issues not raised below or not briefed on appeal are forfeited | Investigator claim not considered (not raised below); other claims abandoned for failure to brief |
Key Cases Cited
- Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (malicious prosecution alone is not a constitutional §1983 claim)
- Heck v. Humphrey, 512 U.S. 477 (1994) (§1983 claim that would imply invalidity of conviction or sentence is barred unless conviction reversed)
- Edwards v. Balisok, 520 U.S. 641 (1997) (Heck applies to prison disciplinary proceedings)
- Thompson v. Upshur Cnty., 245 F.3d 447 (5th Cir. 2001) (supervisory officials not liable under §1983 on vicarious liability theories)
- Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993) (issues raised for the first time on appeal generally not considered)
- Gentilello v. Rege, 627 F.3d 540 (5th Cir. 2010) (conclusory allegations insufficient to establish personal involvement)
- Geiger v. Jowers, 404 F.3d 371 (5th Cir. 2005) (standard of review for dismissal under §1915A and §1915(e))
- Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744 (5th Cir. 1987) (issues not briefed on appeal are treated as waived)
AFFIRMED; motion to appoint counsel denied; warning issued under 28 U.S.C. § 1915(g).