Opinion
3:04-CV-1045-N.
July 13, 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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a pre-trial detainee pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently confined at the Dallas County Jail in Dallas, Texas. Defendant is Dallas Police Officer Eddie E. Reynolds. The court has not issued process in this case. However, on May 26, 2001, the magistrate judge issued a questionnaire to Plaintiff who filed his answers on June 2, 2004.
Statement of Case: The complaint, supplemented by the answers to the magistrate judge's questionnaire, alleges that on December 27, 2003, Officer Reynolds arrested Plaintiff following an alleged robbery. (Complaint at 4). Shortly thereafter Plaintiff was identified by a witness in a one-person line-up or "showup." as being involved in the robbery. (Id.). Following his arrest, Plaintiff was charged with robbery in the 292nd Judicial District Court of Dallas County, Cause No. F03-58892. (Answer to Questions 2-3). He is presently awaiting trial on the robbery charge. (Answer to Questions 1 and 3).
Plaintiff alleges that the one-person line-up or showup violated his right to a fair trial under the Sixth Amendment to the United States Constitution. He seeks monetary relief. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
He also requests that Officer Reynolds be suspended from duty without pay and that all "identification evidence be banned from use in any criminal prosecution." (Complaint at ¶ VI). Such requests are not cognizable in this civil rights action.
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).
Witness identification of a suspect, if "unnecessarily suggestive and conducive to irreparable mistaken identification," can violate a suspect's due process rights. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); see also United States v. Benson, 495 F.2d 475, 480 (5th Cir. 1974). To determine whether lineups are proper the court must decided (1) "whether the police used an unduly suggestive pretrial procedure in obtaining an identification," and (2) "whether, under all circumstances, that suggestive procedure resulted in a substantial likelihood of irreparable misidentification." United States v. Flannigan, 884 F.2d 945, 948 (7th Cir. 1989) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)); see also United States v. Sanchez, 988 F.2d 1384, 1389-91 (5th Cir. 1993).
To maintain a § 1983 action against Officer Reynolds for the one-person lineup, Plaintiff must allege not only that the identification was improper under the test set out in Manson, but also that the evidence derived from the identification prejudiced his right to a fair trial. Hensley v. Carey, 818 F.2d 646, 649-50 (7th Cir. 1987). Stovall and Manson set forth a prophylactic rule that protects a defendant's right to a fair trial; they "do no establish a right to an impartial lineup as long as the evidence gained through that lineup is not used at trial." Id. at 650.
The complaint in this case merely alleges that a witness identified Plaintiff in a one-person show up at the scene of the crime. He alleges no possibility of prejudice at his upcoming trial, such as that a witness who was at the show up will or may identify Plaintiff in court. Therefore, the complaint fails to raise a civil rights violation. See id. (arrestee, who was never tried, had no constitutional right to lineup that was not unduly suggestive; procedural safeguards on lineups protected only against admission of unreliable evidence at trial and did not establish right to impartial lineup as long as evidence gained through lineup was not used at trial); Williams v. Hutchens, 870 F.Supp. 857, 863 (N.D.Ill., Nov. 2, 1994) (arrestee failed to state claim against police officer asserting violation of due process from showup identification procedure used by officer, absent any allegation that evidence derived from identification prejudiced arrestee's right to fair trial).
Moreover, even if Plaintiff had alleged prejudice, his claim would ultimately imply the invalidity of a potential conviction. Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the court must dismiss a civil action based on the legality of a prior criminal conviction or sentence unless a federal court has determined that the conviction or sentence is in fact invalid or otherwise legally infirm. See Heck, 512 U.S. at 486-87; Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). Heck also bars "damage claims which, if successful, would necessarily imply the invalidity of a potential conviction on a pending criminal charge." Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 898 n. 8 (7th Cir. 2001);see also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (interpreting Heck to prevent accrual of § 1983 claims that would necessarily imply the invalidity of convictions on pending criminal charges); Smith v. Holtz, 87 F.3d 108 (3rd Cir. 1996) (holding that a claim challenging the validity of a future conviction raises the same concerns as a claim challenging the legality of a conviction and, as a result, "does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist.").
Several circuit courts have relied on Smith in extendingHeck to pre-conviction criminal charges. See Shamaeizadeh v. Cunigan, 182 F.3d 391, 397 (6th Cir. 1999); Covington v. City of New York, 171 F.3d 117, 124 (2nd Cir. 1999); Washington v. Summerville, 127 F.3d 552, 555 (7th Cir. 1997).
In the instant case the complaint is connected to the robbery charge for which Plaintiff is presently awaiting trial in state court. In claiming that Officer Reynolds conducted an improper show up and that his right to a fair trial will be prejudiced thereby, Plaintiff would effectively be claiming that any future conviction for robbery — the only damage he will suffer as a result of an improper identification — was invalid. Therefore, Plaintiff's claims against Officer Reynolds are also barred byHeck. Williams v. Hutchens, 870 F.Supp. 857, 863 (N.D. Ill., Nov. 2, 1994) (noting that even if plaintiff had sufficiently alleged prejudice as a result of show up at time of arrest that claim would be Heck barred); see also Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000) ("[A] claim, that if successful would necessarily imply the invalidity of a conviction in a pending criminal prosecution, does not accrue so long as the potential for a conviction in the pending criminal prosecution continues to exist.").
RECOMMENDATION:
For the foregoing reasons, it is recommended that the complaint be dismissed with prejudice as frivolous under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B).
It is further recommended that insofar as Plaintiff alleges a civil rights violation that his complaint be dismissed with prejudice as frivolous until such time as Plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994).
The Clerk will mail a copy of this recommendation to Plaintiff Michael Wayne Williams, #03095864, Dallas County jail, Lew Sterrett, 500 Commerce Street, Dallas, Texas 75202.