Opinion
No. 3:02-CV-0444-D
April 2, 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, 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. § 1981 and 1983.
B. Parties: Plaintiff is currently incarcerated in the Texas prison system. He names Terrell Bolton, Dallas Chief of Police; Janie Cockrell, Director of Texas Department of Criminal Justice-Institutional Division; and the City of Dallas as defendants. (See Compl. at 2-3.)
C. Statement of the Case: Plaintiff was serving a ten-year probation for attempted murder when he was arrested by a Dallas police officer on March 16, 1995 for delivery of a controlled substance. ( See Answer to Question 1 of Magistrate Judge's Questionnaire (MJQ).) On October 13, 1995, plaintiff was convicted of delivery of less than one gram of a controlled substance and sentenced to two years in state jail, probated for five years. (See Answer to Question 3 of MJQ.) This arrest and conviction led to the revocation of plaintiffs ten-year probation for attempted murder. ( See Answer to Question 1 of MJQ.)
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).
Plaintiff challenged his October 13, 1995 conviction in state court, but the Texas Court of Criminal Appeals has denied relief. (See Answer to Question 4 of MJQ.) He concedes that this conviction has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. (See Answer to Question 5 of MJQ.) Petitioner does have a federal petition for writ of habeas corpus currently pending before this Court. See Williams v. Dallas County Community Supervisions Corrections Dep't, No. 3:01-CV-2073-D (N.D. Tex.).
Plaintiff sues Chief Terrell Bolton, alleging that the March 16, 1995 arrest and his subsequent incarceration were illegal. (Compl. at 3; Answer to Question 1 of MJQ). He sues the City of Dallas because it allegedly "drew up fictitious indictments to keep [him] imprisoned in jail." (Compl. at 3.) He also sues Janie Cockrell for "conspiring" to imprison him because of the illegal arrest. ( Id.) Plaintiff seeks monetary damages. ( Id. at 4.) No process has been issued in this case.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiffs complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 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).
III. HECK BAR
Plaintiff seeks relief under 42 U.S.C. § 1981 and 1983 against the current Director of the TDCJ-ID, Terrell Bolton as the Chief of the Dallas Police Department, and the City of Dallas for events related to his 1995 arrest and subsequent incarceration. "[S]ection 1981 provides a cause of action for public or private discrimination based on race." See Felton v. Polles, 315 F.3d 470, 480 (5th Cir. 2002). 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 us redress for violations of federal statutes, as well as of constitutional norms." Id.
Where a state prisoner seeks monetary damages in a § 1983 suit, 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 a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. See Heck, 512 U.S. at 486-87; see also Amaker v. Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999) (holding that the principle established in Heck — that a prisoner-plaintiff may not assert a civil damages claim that necessarily challenges the validity of an outstanding criminal conviction — is not limited to § 1983 actions, but also applies to actions under § 1981).
In this instance, plaintiff complains that he was falsely arrested on March 16, 1995 and unlawfully held. If the Court were to grant damages for his alleged false arrest and subsequent incarceration under the facts of this case, such a ruling would necessarily implicate the validity of his October 13, 1995 conviction for delivery of a controlled substance. See Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999) (holding that Heck bars recovery under a false arrest theory because a conviction for aggravated assault necessarily implies that there was probable cause for his arrest at that point in time); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (holding that Heck bars recovery for false arrest, when there is probable cause for any of the charges made and plaintiffs proof to establish his false arrest claim, i.e., that there was no probable cause to arrest . . . would demonstrate the invalidity of [plaintiffs] conviction); Parker v. Moreno, No. 3:01-CV-1283-D, 2002 WL 1758181, at *1, 4-5 (N.D. Tex. July 26, 2002) (accepting findings and recommendation that false arrest claim be dismissed under Heck); Gipson v. Dallas County Jail, No. 3:01-CV-0554-D, 2002 WL 257574, at *1-2 (N.D. Tex. Feb. 19, 2002) (same). Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under sections 1981 or 1983. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff has failed to make such a showing. As stated in his Answers to Questions 4 and S of the MJQ, the Texas Court of Criminal Appeals has denied relief. Plaintiff has not otherwise had his 1995 conviction or sentence reversed, invalidated, or expunged prior to bringing the instant action. Consequently, his 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. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DISMISS the instant action with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).