Opinion
CIVIL ACTION NO. 4:96-CV-813-Y
October 30, 1997
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(e) AND 28 TJ.S.C. § 1915A
On November 15, 1996, Plaintiff was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge. In response to this Court's order of June 5, 1997, plaintiff Wilson filed a more definite statement on June 27, 1997. Plaintiffs form complaint, which is brought pursuant to 42 U.S.C. § 1983, names as defendants the Bedford Police Department, detective Jerry Buford, detective Wayne Moody, and detective Mike Mason. (Compl. Style; ¶ III.) Plaintiff complains that after being arrested on August 12, 1995, detectives of the Bedford Police Department failed to read him his rights, and he alleges that he was physically struck and kicked in an effort to force him to sign papers. (Compl. ¶ IV Attach.) He also alleges that he was denied emergency medical attention. (Compl. ¶ IV.) He seeks the sum of $2,000,000.00 in damages, and full medical treatment. (Compl. ¶ V.) After careful review of Plaintiff s complaint and more definite statement, the Court finds that Plaintiffs claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(a).
A complaint filed in forma pauperis which lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Under 28 U.S.C. § 1915, a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim shall be dismissed. See 28 U.S.C.A. § 1915(e)(2) (West Supp. 1997); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969 (1989); Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). Furthermore, Congress recently enacted 28 U.S.C. § 1915A, which now requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee, as soon as possible after docketing. 28 U.S.C.A. § 1915A(a) (West Supp. 1997). Consistent with this newly enacted statute is prior case law recognizing that a district court is not required to await any responsive pleading to conduct its § 1915 inquiry. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." Id., citing, Neitzke v. Williams, 490 U.S. 319, 327 (1989). The Court finds that Plaintiffs claims under 42 U.S.C. § 1983 must be dismissed under the authority of 28 U.S.C. § 1915A(b) and 1915(e)(2).
As a result of amendments to the in-forma-pauperis statute, prior 28 U.S.C. § 1915(d) is now § 1915(e). Although § 1915(d) previously allowed a Court to dismiss an IFP suit if the allegation of poverty was untrue or if the action was frivolous or malicious, the amendment now requires dismissal not only for those reasons, but also if "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 1997) (emphasis added).
The Court first disposes of the claim against the City of Bedford police department. Although the City is a "person" within the meaning of § 1983, it may not be held liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978). The Supreme Court, in Monell, emphasized that a local government entity cannot be held liable under § 1983 on a respondeat superior basis:
[Therefore] . . . a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.Id. at 694. Thus, § 1983 liability attaches "only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original).
In Bennett v. City of Slidell, the Court of Appeals for the Fifth Circuit set forth two ways in which a municipality could be liable for official policy: the adoption of a formal policy statement or regulation by an official with policy-making authority, or a persistent widespread practice by municipal officials or employees, which is so common and well-settled as to onstitute a custom that fairly represents municipal policy. Bennett v. City of Slidell, 735 F.2d 861 (5th Cir. 1984) (en bane), cert. denied 472 U.S. 1016 (1985). Plaintiff has made no allegation against any official with policy-making authority. In the absence of personal participation by an official empowered to make policy for the city, "liability could therefore be found only if there was `[a] persistent widespread practice of City officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. . . ." Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986), citing Bennett, 735 F.2d at 862. Plaintiffs allegation against the City of Bedford is merely that the Bedford Police Department was responsible for the safety of its prisoners. (More Def. Statement at ¶ 5(c).) Plaintiff has alleged no facts of any persistent or widespread practice. Plaintiff has stated no facts to support a claim against the City of Bedford or its police department. Thus, Plaintiffs claims against the City of Bedford and its police department must be dismissed under 28 U.S.C § 1915(e)(2) and 28 U.S.C. § 1915A(b).
As to Plaintiffs claim that he was denied emergency medical treatment, he does not set forth facts that the individual defendants were involved in any denial to him of medical attention. Although Plaintiff alleges he received a cut and swelling in his lower back as a result of the actions of detective Burford, he also acknowledges that when detective Moody asked him if he was alright, he nodded his head "yes." (More Def. Statement at ¶ III.) Also, although he further alleges he asked one of the non-defendant officers who transported him to a cell if he could see a doctor, he apparently did not follow that officer's suggestion to ask one of the detectives. (More Def. Statement at ¶ III.) Thus, in spite of the alleged injurious actions of detective Burford in the presence of detectives Moody and Mason, Plaintiff does not claim that he relayed to these defendants a request for medical care. His claim for denial of emergency medical attention must therefore be dismissed under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b).
The main thrust of Plaintiffs complaint and more definite statement is his allegations regarding the actions of the individual defendants while questioning him on a capital murder charge. (Compl ¶ IV; More Def. Statement at IV.) Plaintiff Wilson alleges that while being questioned at the Bedford police station, he was denied the right to counsel, that he was denied the right to refuse to answer questions without a lawyer present, and that detective Burford physically struck him in the side of the head and kicked him in the back several times while he was handcuffed in order to force Wilson to sign papers. (Compl. ¶ IV attachment; More Def. Statement ¶¶ II-III.) Wilson alleges that he was thus forced to signed a confession upon fear of being hurt. (Compl. 1 IV attachment; More Def. Statement ¶ III.) These allegations, taken as true, would constitute grievous violations of Wilson's constitutional rights. Whether such claims are actually cognizable at this time, however, must be resolved by an application of the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
In Heck v. Humphrey, the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue, until that conviction or sentence has been "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." Heck, 512 U.S. at 486-87; see also Wells v. Banner, 45 F.3d 90, 94 (5th Cir. 1995). Said another way, the maturity of a § 1983 claim depends on whether a judgment in the plaintiffs favor would necessarily imply the invalidity of his conviction or imprisonment. Heck, 512 U.S. at 487; see also Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Most recently, in Edwards v. Balisok, 117 S.Ct. 1584, 1587 (1997), the Supreme Court held that even in the context of a challenge to the procedures used to deprive a state prisoner of good time credits, if the challenge to the procedures could be such as to necessarily imply the invalidity of the punishment imposed, the claims are not cognizable under § 1983. Id. at 1588.
Plaintiffs allegations amount to claims of the denial of the right to counsel under the Sixth Amendment, denial of the Fifth Amendment right not to be compelled to incriminate oneself as enunciated in Miranda v. State of Arizona, 384 U.S. 440 (1966), and a coerced confession in violation of the Fifth Amendment. Other courts have determined that a Plaintiff's success on such claims would imply the invalidity of the underlying conviction. Cf. Woodward v. Sedgwick County Jail Administrator, No. 96-3202, 1997 WL 31548, at *2 (10th Cir. Jan. 27, 1997) (finding that claims attacking the conviction and incarceration resulting from the use of a coerced confession and coerced plea is "exactly the situation addressed by Heck") (unpublished copy attached); Porter v. Bodlovich, No. 3:94-CV-0889 AS, 1996 WL 535436, at *11 (N.D.Ind. September 17, 1996) (noting that plaintiffs claim that he was denied the right to counsel because he was unable to telephone his lawyer was barred by Heck); Aleotti v. Boars, 896 F. Supp. 1, 4 (U.S.D.C. 1995) (noting that plaintiffs claim that the arresting officer failed to read him his Miranda rights would necessarily imply the invalidity of his conviction), aff'd, 107 F.3d 922 (D.C. Cir. 1996). Similarly in this case, Wilson's allegations would necessarily imply the invalidity of his incarceration on capital murder charges, and such claims are therefore not cognizable under § 1983. See Edwards, 117 S.Ct. at 1588. Plaintiff has not shown that the imprisonment resulting from the alleged conduct of the defendants in violation of the Fifth and Sixth Amendments to the Constitution has been invalidated by a state or federal court. See Heck, 512 U.S. at 486-88. As a result, Plaintiffs claims for monetary damages arising from the alleged failure to provide him counsel, failure to give Miranda warnings, and coerced confession must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b). See Edwards, 117 S.Ct. at 1588-89; Heck, 512 U.S. at 487-88.
It is therefore ORDERED that all Plaintiffs claims against the City of Bedford be, and they are hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that Plaintiffs claim for denial of medical care against defendants Burford, Moody and Mason be, and is hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that all of Plaintiffs remaining claims against defendants Burford, Moody, and Mason be, and they are hereby, DISMISSED WITH PREJUDICE to their being asserted again until the Heck v. Humphrey conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Exhibit 1 to Order of Dismissal dated May 21, 2003, and filed May 22, 2003
106 K3d 414 (Table) 97 CJ C.A.R. 177 Unpublished Disposition (Cite as: 106 F.3d 414, 1997 WL 31548 (10th Cir.(Kan.)))
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)
David L. WOODWARD, Plaintiff-Appellant, v. SEDGWICK COUNTY JAIL ADMINISTRATOR, Mitchell Paige; Melissa Day; Mike Hill, Defendants-Appellees No. 96-3202. United States Court of Appeals, Tenth Circuit Jan. 27, 1997Before TACHA, EBEL, and BRISCOE, Circuit Judges
ORDER AND JUDGMENT [FN*]
FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.
**1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Plaintiff-appellant David L. Woodward appeals the district court's dismissal of his civil rights action, brought pursuant to 42 U.S.C. § 1983. Because plaintiff's claims are precluded by the Supreme Court's opinion in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), and by the statute of limitations, we affirm.
On May 23, 1991, plaintiff attempted to commit suicide after being identified as a suspect in a sexual molestation. While hospitalized, plaintiff made inculpatory statements during police questioning, and his wife consented to a search of their home which disclosed incriminating evidence. On May 25, 1991, plaintiff was arrested and placed in an infirmary cell under suicide watch. Between this date and June 5, 1991, plaintiff was handcuffed to the bed, clothed only in a paper gown under cold conditions. Plaintiff made several inculpatory statements during this time. On May 27, 1991, he was given a blanket and his dentures. After June 5, 1991, plaintiff was taken off suicide watch, but remained under observation in administrative segregation. He was permitted standard issue clothing, bedding, a daily shower, exercise, and standard commissary and visitation privileges.
On May 29, 1991, a public defender was appointed to represent plaintiff, and on September 6, 1991, plaintiff pled guilty to six felony counts, including kidnapping, sexual exploitation of a child, rape, and felony murder. Plaintiff is currently incarcerated in a state correctional facility. His convictions have not been reversed.
On June 11, 1993, plaintiff filed this civil rights action against the Sedgwick County Jail Administrator, the Sedgwick County Sheriff, and his former attorney, alleging that defendants (1) conspired to deprive him of his Sixth Amendment right to effective assistance of counsel; (2) conspired to coerce his confessions and guilty pleas in violation of the Fifth Amendment; (3) illegally searched his residence and submitted tainted evidence at the preliminary hearing in violation of the Fourth Amendment; and (4) subjected him to cruel and unusual punishment by reason of jail conditions and deprivation of medical treatment in violation of the Eighth Amendment. The district court dismissed the action on the following grounds: (1) plaintiffs claims that he was denied his right to effective assistance of counsel and that his confessions and guilty plea were coerced were barred by Heck, 114 S.Ct. at 2372-73; and (2) plaintiffs claims of illegal search and cruel and unusual punishment were barred by the statute of limitations. This appeal followed.
We review the dismissal of a complaint de novo, accepting well-pleaded allegations as true and construing them in the light most favorable to plaintiff. Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir. 1980). Where a complaint shows on its face that the applicable statute of limitations has expired, dismissal for failure to state a claim is appropriate. Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980).
**2 We conclude the district court properly dismissed plaintiff's damages claims premised on the deprivation of counsel and the use of coerced confessions and a coerced guilty plea, because such claims directly challenged the validity of his convictions. In Heck v. Humphrey, the Supreme Court held that
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 114 S.Ct. at 2372 (footnote omitted).
The only injury identified by plaintiff is the fact of his convictions and incarceration. To establish that he is entitled to compensation for this injury, plaintiff necessarily must show that the convictions and incarceration are unlawful, based on the deprivation of effective assistance of counsel and the use of coerced confessions and a coerced plea. This is exactly the situation addressed by Heck, in which the Court held that such claims are not cognizable unless the underlying convictions have been reversed, expunged, declared invalid, or called into question by issuance of a writ of habeas corpus. The fact that plaintiff is now procedurally barred from raising these challenges to his convictions in a habeas corpus petition does not change this result, because the focus of our inquiry is on whether plaintiff has suffered a compensable injury, and not whether plaintiff is foreclosed from any other avenue of challenging his convictions. [FN1]
FN1. Plaintiff appears to argue that, in regard to his allegedly coerced confessions, proof of a constitutional violation will not render his convictions invalid because his convictions are based on a guilty plea. Although this may be true, plaintiff has not alleged any damage resulting from the allegedly coerced confessions other than his convictions and incarceration.
The district court also acted correctly in dismissing plaintiffs cruel and unusual punishment claim and his search and seizure claim based on the statute of limitations. As 42 U.S.C. § 1983 does not contain a statute of limitations, we look to the underlying state*s statute of limitations governing personal injury claims. See Hardin v. Straub, 490 U.S. 536, 538, 540 (1989); Hamilton v. City of Overland Park, 730 F.2d 613, 614 (10th Cir. 1984) (applying Kansas personal injury limitation). In Kansas, a personal injury action must be brought within two years after a cause of action accrues. Kan. Stat. Ann. § 60-513(a)(4) (b). A civil rights action accrues when the "facts that would support a cause of action are or should be apparent." Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (quotations omitted).
Plaintiffs cruel and unusual punishment claim rests on his treatment while under suicide watch at the Sedgwick County Jail. This treatment was readily apparent to plaintiff when it occurred. The record shows that plaintiff was taken off suicide watch on June 5, 1991, and that, although he was still under observation, he was given standard prisoner clothing and privileges on that date. Exhibit 6 to Martinez Report, p. 2. Although plaintiff alleges in his affidavit that he was subjected to cruel and unusual conditions "until approximately June 20," R. I, doc. 2, he does not allege any facts to support this claim. Because plaintiff was last subjected to the complained of conditions on June 5, 1991, his lawsuit brought on June 11, 1993, fell outside the limitations period. The fact that plaintiff may not have discovered the legal basis for his claim until later did not extend the time in which he was required to bring his action. See Richards v. Mileski, 662 F.2d 65, 71 n. 10 (D.C. Cir. 1981) (holding "mere ignorance of the law does not ordinarily toll the statute of limitations"); see also United States v. Kubrick, 444 U.S. 111, 123-24 (1979) (holding that medical malpractice accrued upon knowledge of facts, regardless of whether plaintiff knew legal rights had been invaded).
**3 Similarly, plaintiffs search and seizure claim accrued when it occurred on May 27, 1991, or at the latest, when he learned of the search within the next few days. See Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991) (holding that "[c]laims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur" unless plaintiff shows why he did not know of the alleged injury when the actions occurred). His argument that he did not know of the damage until the illegally seized evidence was used at the preliminary hearing renders his claim one for damages resulting from his conviction, which, as explained above, is precluded by Heck.
Finally, plaintiffs claim that the statute of limitations was tolled while he was incarcerated is without merit. State limitations statutes control whether a plaintiffs incarceration tolls the time to bring a civil rights action. Hardin, 490 U.S. at 539, 543. Here, section 60-515 (a) of the Kansas Statutes specifically states that the statute of limitations is not tolled for a prisoner who has access to the court for purposes of bringing an action. Plaintiff has not alleged that he was denied access to the court during the limitations period. Therefore, his incarceration did not toll the statute of limitations.
Plaintiffs motion for leave to proceed in forma pauperis is GRANTED. The judgment of the United States District Court for the District of Kansas is AFFIRMED. The mandate shall issue forthwith.
END OF DOCUMENT
Copr. c West 1997 No Claim to Orig. U.S. Govt. Works
TARRANT COUNTY
Thomas A. Wilder District Clerk
May 20, 2003
Magistrate Judge's Office United States District Court Northern District Of Texas 501 West 10th Street Fort Worth, Texas 76102The following is the information you requested in your fax of MAY 20, 2003.
RE: DONALD RAY WILSON V. BUFORT, NO. 4:02-CV-959-Y
PETITIONER: DONALD RAY WILSON
COURT: 371ST DISTRICT COURT
CONVICTION: 0591894A — CAPITAL MURDER
CONVICTION DATE: DECEMBER 5, 1997 — LIFE IN INSTITUTIONAL DIVISION OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE
WRIT NO. C-371-005891-0591894-A
DATE WRIT FILED: 03/28/2002
FINAL DISPOSITION: 1/24/2003 — OPINION GRANTING RELIEF RECEIVED. APPLICANT RETURNED TO THE POINT AT WHICH HE CAN FILE A PETITION FOR DISCRETIONARY REVIEW. OPINION FROM COURT OF CRIMINAL APPEALS DELIVERED JANUARY 22, 2003. MR. WILSON FILED A PRO SE PETITION FOR DISCRTIONARY REVIEW ON APRIL 3, 2003.
Exhibit 2 to Order of Dismissal dated May 21, 2003, and filed May 22, 2003