Opinion
No. 2:01-CV-0175
May 25, 2001
BRIEFING ORDER
Plaintiff LANDIS CHARLES BARROW, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, filed suit in the 320th District Court of Potter County, Texas, complaining the above-named defendants had violated his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights "guaranteed . . . by the U.S. Constitutional and Federal Laws." On May 2, 2001, defendants REBECCA KING, JOHN COYLE, JIMMY D. BOYDSTON, JOHN STRADLEY, MANNY P. VILLASENOR, STRICKLAND WATKINS, IRIS SANDERS LAWRENCE, and POTTER COUNTY, TEXAS (the Potter County Defendants) filed a Notice of Removal in the instant Court.
Although the Potter County Defendants paid the filing fee upon removal to this Court, plaintiff stated that his poverty prevents him from being able to pay for copies of his complaint and obtaining service upon unserved defendants. Plaintiff moved for permission to proceed in forma pauperis and has been granted permission to proceed as a pauper pursuant to Title 28, United States Code, section 1915.
The Magistrate Judge has reviewed plaintiffs complaint and has determined that additional facts are necessary to enable the Court to determine the nature of plaintiffs claim.
IT IS HEREBY ORDERED:
All parties, plaintiff and defendants, shall have twenty (20) days, or until June 14, 2001, in which to research and brief the following enumerated issues:
1. Was there a plea bargain in connection with the charges stemming from the incident underlying the instant complaint?
2. If there was such a plea bargain, what were the exact terms of such plea bargain?
3. Was the plea bargain connected with a "conviction" or "incarceration" which could be or could have been challenged in a habeas action?
4. If the answer to question no. 3 above is yes, was there ever such a challenge which produced a favorable termination, as defined in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), i.e., was any conviction or incarceration ever reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus?
5. Are some or all of plaintiffs claims barred by the favorable termination requirement of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)?
6. Are some or all of plaintiffs claims exempt from the favorable termination requirement of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)?
The briefs from each side shall address each of the above-referenced issues and any other issues which may serve to shed light on the legal issues raised by plaintiffs claims.