Chi v. Stover

Full title: ANSON CHI, #44588-177 v. ANDREW STOVER, et al.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Date published: Nov 3, 2016

CIVIL ACTION NO. 4:16cv317 (E.D. Tex. Nov. 3, 2016)

Opinion

CIVIL ACTION NO. 4:16cv317

11-03-2016

ANSON CHI, #44588-177 v. ANDREW STOVER, et al.

AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

ORDER OF DISMISSAL

This civil action was referred to a United States Magistrate Judge, who issued a Report and Recommendation concluding that the complaint should be dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) (Dkt #12). Plaintiff filed objections.

In his objections, Plaintiff reasserts the issues raised in his complaint. However, he does not show that Heck v. Humphrey does not apply to his case, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372, 129 L. Ed.2d 383 (1994). Because Heck applies to Plaintiff's case, it must be dismissed since Plaintiff fails to show that his conviction or sentence has been reversed, expunged, invalidated, or otherwise called into question. Id. He also fails to show that Judge Schell, the United States Attorney, and Assistant United States Attorneys are not immune from liability. Boyd v. Biggers, 31 F.3d 279, 284-85 (5th Cir. 1994) (claims against defendants with absolute immunity, such as judges and prosecutors, should be dismissed with prejudice).

In conclusion, the Report of the Magistrate Judge, which contains proposed findings of fact and recommendations for the disposition of such action, has been presented for consideration. Having made a de novo review of the objections raised by Plaintiff to the Report, the Court concludes that the findings and conclusions of the Magistrate Judge are correct, and adopts the same as the findings and conclusions of the Court. It is accordingly

ORDERED that the complaint and all claims against all defendants are DISMISSED with prejudice subject to their being asserted again until the Heck conditions are met. Johnson v. McElveen, 101 F.3d 423, 424 (5^th Cir. 1996) (claims barred by Heck should be dismissed with prejudice to their being asserted again until the Heck conditions are met). Plaintiff's objections are OVERRULED.

Additionally, Plaintiff filed a motion to stay (Dkt. #16). A review of Plaintiff's underlying criminal case shows that both his direct appeal and his writ of certiorari have been denied. Accordingly, Plaintiff's motion to stay (Dkt. #16) is DENIED. All motions by either party not previously ruled on are hereby DENIED.

SIGNED this 3rd day of November, 2016.

/s/_________

AMOS L. MAZZANT

UNITED STATES DISTRICT JUDGE