Opinion
No. 3:03-CV-218-K
March 27, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Moore Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Bonham, Texas. Defendants are Attorney Charles W. Grantham, District Attorney Bill Hill, and Police Officers David W. Larson and Alan T. Foster. The court has not issued process in this case. However, on February 5, 2003, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on February 14, 2003.
Statement of Case: The complaint alleges Defendants conspired to charge Plaintiff with and convict him of"a fake drug case." (Complaint, handwritten attachment at p. 1-2). In support of the conspiracy claims, he alleges that on April 3, 2000, he was stopped on the basis of a "traffic warrant," which never existed and his vehicle was searched without his consent or a warrant. (Answer to Question 2 of the Magistrate Judge's Questionnaire). A few hours following his arrest, Plaintiff was charged with delivery of a controlled substance in Cause No. F00-4511, although he did not possess any drugs nor were any drugs found in his vehicle. ( Id). Thereafter, Plaintiff pled guilty as a result of an allegedly coerced confession. On November 12, 2002, the trial court sentenced him to twenty-five years imprisonment. (Answer to Questions 1-3).
On November 12, 2001, Plaintiff was also sentenced to twenty-five years imprisonment for murder in Cause No. F01-73362. (Answer to Question 1).
According to Plaintiff, his plea was involuntary, he received ineffective assistance of counsel, and his conviction was obtained as a result of a coerced confession. (Answer to Question 4). He further alleges that his charge and conviction stem from police corruption and conspiracy and that the two police officers who arrested him have been fired or suspended or are under investigation for police corruption and creating fake drug cases. Plaintiff seeks twenty million dollars in actual and punitive damages. (Complaint at p. 4) Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
He concedes he has a state court application for a writ of habeas corpus pending in the trial court. (Answer to Question 4).
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact."Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Court must dismiss a complaint brought pursuant to 42 U.S.C. § 1983, when the civil rights action, if successful, would necessarily imply the invalidity of a plaintiffs conviction or sentence, unless the plaintiff demonstrates that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254.
In this instance, the crux of Plaintiff's complaint is that he was improperly charged and convicted of possessing a controlled substance in Cause No. F00-47511. (Complaint at pp. 3-4 and Answer to Question 2). While Plaintiff contends that "this suit will not affect the duration of [his] sentence," (Complaint at 4, emphasis added), this assertion is patently frivolous. The complaint clearly challenges the involuntariness of Plaintiff's guilty plea, the ineffective assistance of his trial counsel, and the coerced nature of his confession. The complaint also seeks to raise an alleged conspiracy between Plaintiff's attorney, the district attorney and two Dallas Police Officers who are allegedly under investigation for police corruption and "creating fake drug cases." (Answer to Question 4). A ruling granting Plaintiff the relief which he seeks would necessarily implicate the validity of his conviction in Cause No. F00-47511, and inevitably affect the duration of his confinement. Therefore, under Heck Plaintiff must demonstrate that his conviction and sentence have been reversed, invalidated, or expunged prior to bringing an action under§ 1983. Heck, 512 U.S. at 486-87.
The fact that Plaintiff is also serving a twenty-five year sentence for murder in Cause No. F01-73362, does not present a sufficient basis to conclude that a ruling in Plaintiff's favor would not affect the duration of his sentence.
Plaintiff cannot make such showing. He has not alleged that his conviction in Cause No. F00-47511 has been reversed, invalidated or otherwise expunged. Moreover, he concedes that his art. 11.07 application is presently pending before the trial court. (Answer to Question 4). Until Plaintiff receives a ruling declaring his sentence invalid, no action shall accrue under § 1983. Id. at 488-89; Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, 121 S.Ct. 1601 (2001) ("Because [plaintiff] is seeking damages pursuant to § 1983 for unconstitutional imprisonment and he has not satisfied the favorable termination requirement of Heck, he is barred from any recovery . . ."). Consequently Plaintiff's claims challenging his conviction for possession of a controlled substance are "legally frivolous" within the meaning of sections 1915(e)(2) and § 1915A(b). Hamilton v. Lyons, 74 F.3d 99, 102-103 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question."). The District Court should dismiss Plaintiff's claims with prejudice to them being reasserted when the Heck conditions are met. See Clarke v. Stalder, 154 F.3d 186, 191 (5th Cir. 1998); Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996).
He notes that the trial court appointed Mr. John Nation to resolve the issues raised in his art. 11.07 application on March 11, 2002, but that as February 11, 2003, he had not been notified by the trial court. (Answer to Question 4).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's claims be dismissed with prejudice to them being reasserted when the conditions under Heck v. Humphrey, 512 U.S. 477 (1994), are met.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.