Summary
applying MISC. ORDER 48 to inmate in Dallas County Jail
Summary of this case from Starks-El v. ValdezOpinion
No. 3:04-CV-1809-N.
October 1, 2004.
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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
B. Parties : Plaintiff is an inmate currently incarcerated in the Dallas County Jail. He names as defendants Dallas County Sheriff Jim Bowles; Dallas Police Officer Kevin Willis; the Dallas County Police Department; Dallas Assistant Public Defender Catherine Gould; Dallas Assistant District Attorneys Kobby Warren and Gregg Long; Dallas District Attorney Bill Hill; Judge Keith Dean; and his appellate attorney John H. Hagler.
C. Statement of the Case : Plaintiff filed this action in August 2004 wherein he claims that defendants conspired to unlawfully confine and restrain him of his liberty. (Compl. at 4, attached page.) In his complaint, he alleged only that he was arrested on or about March 11, 2002 for delivery of a controlled substance. (Compl. at 4.) On August 25, 2004, the Court granted plaintiff leave to proceed in forma pauperis and issued a Magistrate Judge's Questionnaire to obtain further information about plaintiff and his claims. On September 23, 2004, the Court received plaintiff's Answers to Magistrate Judge's Questionnaire.
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
According to plaintiff's Answers, he entered into an open plea of guilty to the March 11, 2002 offense in exchange for probation, but he was sentenced to eight years confinement without an opportunity to withdraw his plea. (Answers to Questions 1 and 2 of MJQ.) Plaintiff unsuccessfully appealed his conviction. (Answer to Question 3 of MJQ.) He has taken no other steps in state court to challenge his conviction. ( Id.) His conviction has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by any collateral proceeding. (Answer to Question 4 of MJQ.)
Plaintiff claims that defendants conspired to unlawfully confine and restrain him of his liberty. (Compl. at 4, attached page.) Plaintiff seeks monetary damages and declaratory relief. ( Id. at 4.) No process has been issued in this case.
II. PRIOR SANCTIONS
Based on plaintiff's answers to the Court's questionnaire, it appears that he was sanctioned by the United States District Court for the Western District of Texas for filing a patently frivolous action despite a prior admonition against such filings. See Oliver v. Sharp, No. 94-CV-256 (W.D. Tex.) (order and judgment dated Oct. 13, 1994). The Western District taxed the $120 filing fee against plaintiff, and ordered that the Clerk of Court refuse any future § 1983 actions submitted for filing by plaintiff until he paid the monetary sanctions or obtained leave of court to file the action. Id.
Specifically, in his answer to Question 6, plaintiff listed prison identification number 586899 as a number formerly assigned to him. That is the same identification number attached to the plaintiff in Oliver v. Sharp.
This Court "observe[s] and enforce[s] sanctions imposed by another federal court in Texas involving Texas Department of Criminal Justice inmates who file pleadings in this District, unless the sanctioned inmate establishes a change of circumstances or otherwise demonstrates that enforcing such previously imposed sanctions would be unjust." MISC. ORDER 48. Plaintiff has not shown that he has paid the $120 sanction to the Western District. He has also not obtained leave of court to file this action. He has shown no change in circumstances or otherwise demonstrated that it would be unjust to enforce the sanctions imposed by the Western District of Texas in this district. Indeed, plaintiff specifically represented in his complaint that he had not been sanctioned by any court as a result of any lawsuit he had filed. ( See Compl. at 4.) Accordingly, this action should be dismissed.
However, because this case was opened and in forma pauperis status granted before plaintiff was definitively connected to the Western District sanction order, the Court may also conduct the preliminary screening of this case envisioned by 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and proceeds to do so.
III. PRELIMINARY SCREENING
Sections 1915(e)(2)(B) and 1915A(b) provide for sua sponte dismissal if the Court finds the complaint frivolous. A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994) "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).Plaintiff seeks relief under 42 U.S.C. § 1983 against several defendants for events related to his arrest in March 2002 and subsequent incarceration. Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
When a prisoner seeks monetary damages in a § 1983 action, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if so, the complaint must be dismissed 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 collateral proceedings under 28 U.S.C. § 2254 or § 2255. See Heck, 512 U.S. at 486-87. This holding has been extended to civil rights actions seeking declaratory or injunctive relief as well as damages. See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998).
In this instance, the crux of plaintiff's complaint is that defendants conspired to unlawfully confine him and restrain his liberty. ( See Compl. at 3-4.) If plaintiff can prove such conspiracy, such success would necessarily call into question his conviction. If the Court were to grant plaintiff damages or his requested declaratory relief for his alleged false arrest and subsequent incarceration under the facts of this case, such a ruling would necessarily implicate the validity of his state conviction. Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under § 1983. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff has failed to make such a showing. (See Answer to Question 4 of MJQ.) Consequently, plaintiff's § 1983 claims are "legally frivolous" within the meaning of 28 U.S.C. § 1915. See Hamilton, 74 F.3d at 103. The Court should dismiss them "with prejudice to their being asserted again until the Heck conditions are met." Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); see also, Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994) (upholding dismissal with prejudice); Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (same).
IV. PROPRIETY OF ADDITIONAL SANCTIONS
The Court considers next the propriety of additional sanctions against plaintiff. Prior to filing this action, plaintiff had accumulated two "strikes" under 28 U.S.C. § 1915(g). See Oliver v. Sharp, No. 94-CV-256 (W.D. Tex.) (order and judgment dated Oct. 13, 1994); Oliver v. Dallas Police Dep't, No. 94-CV-2220 (N.D. Tex.) (order adopting findings and recommendation of Magistrate Judge and judgment dated Dec. 6, 1994). The Western District of Texas has already monetarily sanctioned plaintiff in the amount of $120, and directed its Clerk to refuse additional § 1983 actions submitted for filing until plaintiff pays that sanction or obtains leave of court.
Section 1915(g), which is commonly known as the "three strikes provision," states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Notwithstanding the previous sanctions, plaintiff filed the instant action. This Court has also recommended dismissal of the instant action as frivolous, and such a dismissal will constitute plaintiff's third strike. Moreover, plaintiff specifically represented in his complaint in this action that he had not been sanctioned by any court as a result of any lawsuit he had filed. ( See Compl. at 4.) The standard form on which plaintiff drafted his complaint specifically warned him that sanctions would be imposed should he provide false or deliberately misleading information. In light of such warning and plaintiff's conduct, sanctions appear necessary to deter future misconduct.
The standard form contains the following provision: "WARNING: The plaintiff is hereby advised any false or deliberately misleading information provided in response to the following [sic] questions will result in the imposition of sanctions. The sanctions the Court may impose include, but are not limited to monetary sanctions and/or the dismissal of this action with prejudice."
Plaintiff is currently paying the $150 filing fee for this action in installments consistent with the Prison Litigation Reform Act of 1996. The Certificate of Inmate Trust Account that he submitted to support his in forma pauperis application shows average monthly deposits in excess of $26. The Court determines that a $25 sanction is reasonable under the circumstances.
V. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's claims under 42 U.S.C. § 1983 with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994). It is further recommended that the District Court impose a $25 monetary sanction upon plaintiff for his lack of candor with the Court and continued frivolous filings despite prior warnings and sanctions. In addition, the District Court should make clear that the Clerk of the Court is directed to return future submitted filings to plaintiff without filing them should plaintiff attempt to file a civil action without showing compliance with the sanctions of the Western District of Texas and this Court.