Opinion
2:97-CV-0280
April 15, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff TONY EDWARD POWELL, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been given permission to proceed in accordance with Title 28, United States Code, section 1915(b). All parties have consented to proceed before the Magistrate Judge to a trial on the merits.
Plaintiff alleges the defendants utilized unnecessary and excessive force against him on January 24, 1997, resulting in a swollen eye, a split lip, bruises, and a hurt back. Plaintiff requests monetary damages and a restraining order. Based upon this incident, plaintiff received a disciplinary case for attacking an officer; was found guilty; and lost substantial goodtime.
The Court notes plaintiff's original complaint clearly states the incident occurred in 1994; however, plaintiff later stated the incident actually occurred in 1997.
Plaintiff provides no details concerning the terms of the requested restraining order.
On September 29, 2000, the instant cause was administratively closed pending plaintiff's securing a favorable termination of his prison disciplinary case through a federal habeas action. Plaintiff filed habeas cause no. 2:00-CV-0380 on November 20, 2000 which was dismissed on March 25, 2002 as moot due to plaintiff's release to mandatory supervision.
The Court notes the Texas Court of criminal Appeals has ruled state habeas corpus does not provide relief in matters stemming from prison disciplinary proceedings. Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988); Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986).
The instant cause was re-opened by order issued April 3, 2002; and plaintiff seeks to prosecute his civil rights claims asserted herein.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915 (e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
The nature of the suit is determined by the status of the plaintiff at the time of filing. The filing is the "triggering event" which imposes the PLRA provisions on prisoners, but not on non-prisoners. See, Haynes v. Scott, 116 F.3d 137 (5th Cir. 1997). Plaintiff was a prisoner when he filed the instant suit and it continues to be a prisoner civil rights suit subject to the terms of the PLRA despite plaintiff's subsequent release.
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Initially, the Court notes that plaintiff's release from the custody of the Texas Department of Criminal Justice, Institutional Division, renders moot his requested injunctive relief in the form of a restraining order. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Plaintiff has also requested actual and exemplary damages in the form of monetary relief. The specifics of plaintiff's claim are that he was walking with other inmates when defendant HOUSE singled him out and called him over, subjecting him to verbal abuse for allegedly having run into HOUSE. When plaintiff tried to explain, defendant MADDOX handcuffed him and verbally abused him too. Plaintiff states when he said he didn't understand, MADDOX pushed and struck him, attempting to bring him down to the ground. Plaintiff claims defendants HOUSE, WILSON, and ATCHLEY helped MADDOX by kicking and striking plaintiff, as well as twisting his legs. Plaintiff states defendant HORN did nothing to prevent this attack, but only stood by laughing.
Review of the disciplinary case plaintiff received based on this incident, as well as the use of force report on the incident, reveals plaintiff received a case for turning while handcuffed and attempting to charge at defendants HOUSE and MADDOX, necessitating a use of force and, further, that plaintiff continued to struggle even after having been brought to the ground, necessitating further force to subdue him.
A grant of relief on plaintiff's claims in this case would necessarily call into question the validity of the disciplinary determination of guilt. Accord, Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996) (civil rights claim that officers used excessive force during arrest could not be maintained where plaintiff's conviction of battery of officer, based on that incident, had not been invalidated because a finding in plaintiff's favor would necessarily imply the invalidity of plaintiff's arrest and conviction for battery of officer). In the wake of Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997), theHeck doctrine is now applied to the prison disciplinary setting.See also Clayton-El v. Fisher, 96 F.3d 236, 243 (7th Cir. 1996) (if plaintiff proved in a section 1983 action that the result of the disciplinary process was invalid, this proof would have preclusive effect in a state court habeas corpus action challenging the recision of his good time credits); Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996) (plaintiff's First Amendment claims were so entangled with the propriety of the disciplinary result that a ruling in plaintiff's favor would necessarily imply the invalidity of the disciplinary result and the lengthened sentence).
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994).
For this reason, plaintiff's claim is not cognizable under section 1983 without a prior showing of favorable termination, that is, that the results of the disciplinary hearing have already been overturned, either on administrative appeal, through habeas, or by some other means See also, Woods v. Smith, 60 F.3d 1161, 1165 n. 16 (5th Cir. 1995) (citing Ordaz v. Martin. 5 F.3d 529 (5th Cir. 1993) (unpublished)). Plaintiff's pleadings affirmatively demonstrate that his disciplinary case has not 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." Consequently, plaintiff's claims lack an arguable basis in law and are frivolous until the Heck conditions have been met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Plaintiff has attempted to fulfill the Heck conditions by filing federal habeas cause no. 2:00-CV-0380 in this Court on November 20, 2000 which was dismissed on March 25, 2002 as moot due to plaintiff's release to mandatory supervision. Thus, it is clear plaintiff cannot now and apparently will never be able to meet the Heck conditions.
Although some circuits have concluded from language in the concurring and dissenting opinions in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) that the Supreme Court, if presented with the question, would relax strict application of the Heck favorable termination requirement for plaintiffs who have no procedural vehicle to challenge their conviction, the Fifth Circuit has examined this issue and has decided to leave to the Supreme Court "the prerogative of overruling its own decisions." Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (quoting Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). The Fifth Circuit has expressly determined the unavailability of habeas relief does not excuse the Heck requirement of favorable termination in a section 1983 claim calling into question a conviction or unconstitutional confinement. Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000). Therefore, despite the fact that plaintiff apparently cannot now or at any time in the future fulfill theHeck requirement of favorable termination, the failure to fulfill such requirement still bars any recovery on these claims; and plaintiff, therefore, has failed to state a claim on which relief can be granted.
CONCLUSION
For the reasons set forth above, plaintiff has failed to state a claim on which relief can be granted.
IT IS HEREBY ORDERED:
Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), This Civil Rights Complaint is DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to Claire Laric, at the United States District Court for the Northern District of Texas, Dallas Division.
IT IS SO ORDERED.