     Case: 13-10805      Document: 00512707088         Page: 1    Date Filed: 07/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                    No. 13-10805                                   FILED
                                  Summary Calendar                             July 22, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
STEVEN EDWARD BOYD,

                                                 Plaintiff-Appellant

v.

JAMES A. FARRIN, Randall County District Attorney; TOBY HUDSON,
Corporal; RAYMOND LANCASTER, Captain; NFN LANDRUM, Officer; NFN
LOGAN, Officer; RAYMOND SOTO, Officer; MICHAEL HANCOCK, Officer;
JAMES CLEMENTS, Officer; NFN SANDERSON, Sergeant; COREY JONES,
Sergeant; KEITH A. CARGO; NFN AINSWORTH; KYLE HAWLEY; NFN
PONCE; ANTHONY MERRYMAN; MICHAEL MOGELINSKI; NFN KRIZAN;
BRENDA ANN HADLEY; NFN PACHECO,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:13-CV-60


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Steven Edward Boyd, a Texas pretrial detainee, filed a pro se civil rights
lawsuit pursuant to 42 U.S.C. § 1983 alleging that (1) various members of the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-10805

SWAT team that arrested him violated his constitutional rights by threatening
the lives of his children and conducting a warrantless search of his residence
and his car; (2) District Attorney James Farrin lied to the grand jury in order
to have Boyd charged for crimes that he did not commit; and (3) various
members of the SWAT team assaulted him in front of his children and illegally
interrogated him while ignoring his requests for an attorney. He sought both
monetary and injunctive relief for his claims. The district court stayed his
claims for illegal search and seizure to the extent that he requested monetary
relief and ordered him to file an update on the status of his state criminal
proceedings every 90 days. The district court dismissed his requests for
injunctive relief under the Younger abstention doctrine, see Younger v. Harris,
401 U.S. 37 (1971), and dismissed his remaining claims for failure to state a
claim or as frivolous.
      On appeal, Boyd argues that this court should decide the constitutional
issues set forth in his claims and order the state prosecutor to provide him with
copies of his state criminal proceedings to provide evidentiary support for his
claims. He argues that the district court erred in construing his request for
monetary relief as being based solely upon his claims of illegal search and
seizure. He argues that this court should order the defendants to pay him $6
million in damages. He also requests appointment of counsel and an order
requiring an evidentiary hearing. To the extent that Boyd attempts to rely
upon evidence submitted for the first time on appeal, we may not consider that
evidence or his arguments that rely upon that evidence. See Theriot v. Parish
of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). “[W]e may affirm on any
ground supported by the record, including one not reached by the district court.
This is so even if neither the appellant nor the district court addressed the




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                                  No. 13-10805

ground, so long as the argument was raised below.” Gilbert v. Donahoe, ___
F.3d ___, No. 13–40328, 2014 WL 1704129, at *5 (5th Cir. 2014).
      In his amended complaint, Boyd stated that the relief he wanted was
“charges dropped/immediate release from incarceration. Compensation for loss
of wages & pain & suffering [sic] physical/emotional distress.” Thus, Boyd’s
broad request was for both injunctive relief and for damages as to all of his
claims.
      As to Boyd’s request for injunctive relief, all of his claims must be
dismissed pursuant to the Younger abstention doctrine. We review a district
court’s abstention ruling for an abuse of discretion but we review de novo
whether the elements of Younger abstention are present. Bice v. Louisiana
Public Defender Bd., 677 F.3d 712, 716 (5th Cir. 2012). Boyd requested that
the district court enjoin the state criminal proceedings, which is precisely the
crux of what Younger forbids a federal court to do. See Younger, 401 U.S. at
749; Ballard v. Wilson, 856 F.2d 1568, 1569-70 (5th Cir. 1988); see also Price v.
Porter, 351 F. App’x 925, 927 (5th Cir. 2009) (per curiam) (unpublished). Boyd
makes no argument, beyond a conclusory assertion, for why the failure to
address his constitutional claims would result in irreparable injury that is both
great and immediate, such that Younger should not apply. See Younger, 401
U.S. at 46 (internal quotation marks omitted). Therefore, we affirm the district
court’s dismissal of Boyd’s claims to the extent that he seeks injunctive relief
for those claims.
      As to Boyd’s request for damages, we have held that Younger is not
applicable to claims for damages. See Lewis v. Beddingfield, 20 F.3d 123, 125
(5th Cir. 1994) (citing Allen v. La. State Bd. of Dentistry, 835 F.2d 100, 104 (5th
Cir. 1988)). Even if Younger applies, the proper course of action is for a district
court to stay the claims for damages pending the outcome of the state



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proceedings, such that they can move forward without interference. Deakins v.
Monaghan, 484 U.S. 193, 202 (1988). However, this preference for a stay
applies only where there is “no question that [a complaint] allege[s] injuries
under federal law sufficient to justify the District Court’s retention of
jurisdiction.” Id. 204; Marts v. Hines, 68 F.3d 134, 135 & n.5 (5th Cir. 1995);
Cassell v. Osborn, Nos. 93-1557, 93-1607, 93-2079, 23 F.3d 394, at *2 (1st Cir.
1994) (unpublished). We have interpreted this limitation to mean that a stay
is not required where the district court determines that the claim for damages
is frivolous under 28 U.S.C. § 1915. See Marts, 68 F.3d at 135 & n.5; see also
Ballard v. Wilson, 856 F.2d 1568, 1569-70 (5th Cir. 1988) (“[A] federal district
court has no discretion to dismiss cognizable claims for monetary relief which
cannot be redressed in a pending state proceeding.”) (emphasis added); Cassell,
23 F.3d at *2-4 (concluding that a district court may proceed to decide whether
a claim for damages should be dismissed for failure to state a claim); Williams
v. Hepting, 844 F.2d 138, 143 (3d Cir. 1998) (same); Kelm v. Hyatt, 44 F.3d 415,
421 (6th Cir. 1995) (same).
      A district court is required to dismiss a prisoner’s civil rights complaint
if it is frivolous, malicious, or fails to state a claim for relief. 28 U.S.C.
§ 1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). Because the district court
dismissed Boyd’s § 1983 complaint as frivolous or for failure to state a claim
under § 1915A and § 1915(e)(2), our review is de novo under the same standard
that is used to review a dismissal under Federal Rule of Civil Procedure
12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam).
“[A] complaint must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citation omitted). A claim is facially
plausible if the plaintiff pleads facts that allow a court “to draw the reasonable



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inference that the defendant is liable for the misconduct alleged.” Id. A claim
is frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009).
      The district court did not err in dismissing Boyd’s malicious-prosecution,
illegal-arrest, and bystander-liability claims. In his completed questionnaire,
Boyd conceded that he did not know whether Farrin told the alleged lie and
that he did not even know if Farrin presented the case to a grand jury, which
undermines the validity of his claim against Farrin. In any event, we have held
that a claim of malicious prosecution, standing alone, is not a violation of the
United States Constitution and that to proceed under § 1983 such a claim must
rest upon a denial of rights secured under federal law. Castellano v. Fragozo,
352 F.3d 939, 942 (5th Cir. 2003) (en banc). Although the “initiation of criminal
charges without probable cause may set in force events that run afoul of
explicit constitutional protection,” those claims are for the “lost constitutional
rights” and “are not claims for malicious prosecution.” Id. at 953-54.
Furthermore, Boyd conceded that his arrest was based on an outstanding
municipal warrant for tickets and does not specifically respond to the district
court’s conclusion that his arrest was valid because of that warrant. To the
extent that Boyd’s claims relied upon verbal threats, he has not stated a
constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir.
1993). Moreover, Boyd could not pursue claims on behalf of his children, and,
in any event, there is no constitutional right to be free from witnessing a police
action. See Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986) (holding
that any person claiming a deprivation of constitutional rights must prove a
violation of their personal rights); Grandstaff v. City of Borger, Tex., 767 F.2d
161, 172 (5th Cir. 1985) (holding that there is no constitutional right to be free
from witnessing a police action).



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      The district court did err, however, in dismissing Boyd’s excessive-force
claim. To prove a claim for excessive force, a plaintiff must show “(1) injury,
(2) which resulted directly and only from a use of force that was clearly
excessive, and (3) the excessiveness of which was clearly unreasonable.”
Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (internal quotation marks
and citation omitted). Claims of excessive force involve a fact-intensive inquiry.
Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012). The plaintiff must show
he suffered a cognizable injury, which is determined based upon a subjective
analysis of the context in which the injury arose. Williams v. Bramer, 180 F.3d
699, 703-04 (5th Cir. 1999).
      In his amended complaint and completed questionnaire, Boyd alleged
that the ten to fifteen arresting officers assaulted him by violently forcing him
to the ground, shoving his head to the ground with assault rifles, and putting
their feet on his neck to keep him down. As to his conduct, Boyd alleged that
he repeatedly asked the officers why he was being arrested. Boyd further
alleged that when the officers finally informed him why they were arresting
him, they told him it was for parking tickets. When accepted as true, these
allegations are sufficient to state a plausible claim of excessive force. See
Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (holding that facts were
sufficient to assert an excessive-force claim where plaintiff alleged that officer
became frustrated after search and grabbed him by the throat, causing
dizziness and loss of breath); Jackson v. City of Beaumont Police Dep’t, 958
F.2d 616, 621 (5th Cir. 1992) (noting that facts which would allow the
determination that officers’ conduct was unreasonable include reasons given
by officers for being called to the scene, plaintiff’s own conduct during the
incident, and other circumstances surrounding arrest). Therefore, the district
court erred in dismissing Boyd’s excessive-force claim as either frivolous or for



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failure to state a claim. See Samford, 562 F.3d at 678; Ashcroft, 556 U.S. at
678. 1
         In sum, as to Boyd’s request for injunctive relief, we affirm the district
court on the ground that all of the claims must be dismissed pursuant to the
Younger abstention doctrine. As to Boyd’s request for damages, we affirm the
district court’s dismissal of Boyd’s malicious-prosecution claim, illegal-arrest
claim, bystander liability-claim, and all claims to the extent that they rely upon
verbal threats. We likewise affirm the district court’s order staying Boyd’s
request for damages for his illegal-search-and-seizure claim and requiring
Boyd to file an update on the status of his criminal cases every 90 days. We
reverse the district court’s order dismissing Boyd’s excessive-force claim and
remand for further proceedings. We deny Boyd’s request for appointment of
counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982). We
deny Boyd’s request for an order requiring an evidentiary hearing without
prejudice to its consideration on remand.
         AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
MOTIONS FOR APPOINTMENT OF COUNSEL AND AN EVIDENTIARY
HEARING DENIED.




         To the extent that Boyd’s excessive-force claim relied on the officers’ verbal threats,
         1

the district court did not err in dismissing the claim. See Brumley, 1 F.3d at 274 n.4.


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