Opinion · Court of Appeals for the Fifth Circuit

Robert Charles Ford v. Donald Byrd, Chief of Police

544 F.2d 194

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1976-12-16
Topic
litigation

PER CURIAM: This is a § 1983 suit by a Texas state prisoner. The District Court dismissed it without prejudice to the filing of a habeas corpus petition. Insofar as plaintiff seeks relief from confinement he must proceed by habeas corpus. The prosecuting attorney 1 and the state trial judge who sentenced plaintiff are immune from § 1983 suits. Plaintiff questions the validity of the search of his car by two police officers.

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Cited by
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FORD v. BYRD,544 F.2d 194(5th Cir. 1976)
ROBERT CHARLES FORD, PLAINTIFF-APPELLANT, v. DONALD BYRD, CHIEF OF POLICE,
ET AL., DEFENDANTS-APPELLEES.
No. 76-2644.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
December 16, 1976.
Page 195
Robert Charles Ford, pro se.

John L. Hill, Atty. Gen., Thomas W. Choate, Sp. Asst. Atty. Gen., David M. Kendall Jr., First Asst. Atty., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before AINSWORTH, GODBOLD and RONEY, Circuit Judges.
PER CURIAM:
[1] This is a § 1983 suit by a Texas state prisoner. The District Court dismissed it without prejudice to the filing of a habeas corpus petition.

[2] Insofar as plaintiff seeks relief from confinement he must proceed by habeas corpus. The prosecuting attorney1and the state trial judge who sentenced plaintiff are immune from § 1983 suits.

[3] Plaintiff questions the validity of the search of his car by two police officers. That issue was decided adversely to plaintiff by the Texas Court of Criminal Appeals. We pretermit whether that holding collaterally estops the plaintiff in the present case.2The officers who conducted the search are not named as parties. The chief of police is named, but he is vicariously liable for the acts of his subordinates only if he directs, orders, participates in, or approves the acts. There is no claim he did so in this case.

[4] AFFIRMED.
  1. Rule 18, 5 Cir.; seeIsbell Enterprises, Inc. v. CitizensCasualty Co. of New York et al.,5 cir., 1970,431 F.2d 409, Part I. ↩
  2. The prosecuting attorney was not named as a defendant but was mentioned in the other papers filed by plaintiff as being a defendant. Out of caution, the habeas judge ruled as though the prosecuting attorney were a defendant. ↩
  3. SeeBrazell v. Adams,493 F.2d 489(CA5, 1974) (collateral estoppel applies, one of the reasons being that the bar of estoppel can always be raised by federal habeas), but seeStone v. Powell,___ U.S. ___,96 S.Ct. 3037,49 L.Ed.2d 1067(1976) (habeas is no longer available for a search and seizure claim if petitioner had a full and fair opportunity to raise it in state court). ↩