Opinion
No. 3-04-CV-2252-D.
March 7, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This pro se prisoner civil rights action has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
Plaintiff Jeffrey Goss, an inmate in the Dallas County Jail, accuses District Attorney Bill Hill and former Sheriff Jim Bowles of conspiring to violate his civil rights. On October 19, 2004, plaintiff tendered a complaint to the district clerk and filed a motion to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers on February 24, 2005. The court now determines that this case is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
Plaintiff was convicted of aggravated assault with a deadly weapon and sentenced to five years confinement. Originally, plaintiff was arrested on a charge of simple assault and released on bond. However, his bond was revoked after the charge was increased to aggravated assault. According to plaintiff, the district attorney and sheriff have conspired with one another and the trial judge to keep him incarcerated, withhold material evidence from the grand jury, deny him a speedy trial, attempt to prosecute a false murder case, and arrange for the appointment of inadequate counsel. Plaintiff further alleges that defendants allowed him to be assaulted by another inmate in retaliation for filing pretrial motions in his criminal case. By this suit, plaintiff seeks unspecified money damages and injunctive relief.A.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action:
(1) is frivolous or malicious;
(2) fails to state a claim upon which relief can be granted; or
(3) seeks money relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of[the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
A party may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or federal habeas court has determined that the terms of confinement are in fact invalid. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). The critical inquiry is whether a judgment in favor of the plaintiff in the civil action would "necessarily imply the invalidity of his conviction or sentence." Id., 114 S.Ct. at 2372. If so, the claim is barred unless the conviction has been reversed or declared invalid. Id.; Hainze v. Richards, 207 F.3d 795, 798 (5th Cir.), cert. denied, 121 S.Ct. 384 (2000).
Plaintiff accuses defendants of conspiring to violate his civil rights both before and during his criminal trial. Such a claim plainly implicates the validity of his conviction. No state or federal court has ever determined that the terms of plaintiff's confinement are invalid. ( Spears Quest. #4). Consequently, he cannot maintain a civil rights action under 42 U.S.C. § 1983.
Plaintiff states that he challenged his conviction in state writ of habeas corpus. However, neither the trial court nor the Texas Court of Criminal Appeals has any record of such a filing. Although plaintiff sought leave to file a writ of mandamus sometime in 2004, his motion was denied by the Texas Court of Criminal Appeals. See Ex parte Goss, No. 59,901-01 (Tex.Crim.App. Nov. 3, 2004).
C.
Plaintiff further alleges that defendants allowed him to be assaulted by another inmate in retaliation for filing pretrial motions in his criminal case. Law enforcement officials may not retaliate against an inmate for exercising his right of access to the courts. See Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995), cert. denied, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 106 S.Ct. 1975 (1986). In order to prove retaliation, the inmate must: (1) allege the violation of a specific constitutional right; and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997); Woods, 60 F.3d at 1166. Mere conclusory allegations are insufficient. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166, quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988).
Plaintiff alleges that he was assaulted by another inmate, Anton C. Ervin, who mentioned that "he was going to shut me up for Bill Hill[.]" ( Spears Quest. #5). Plaintiff blames Sheriff Bowles for placing him in the same holding cell with Ervin and putting him up to the assault. ( Spears Quest. #6). Although plaintiff states that this action was taken in retaliation for filing pretrial motions in his criminal case, he offers no facts to support that conclusory assertion. Nor does plaintiff allege any facts to establish retaliatory motive. His subjective belief that he was the victim of retaliation does not give rise to a cause of action under 42 U.S.C. § 1983. See Qadir v. Eason, 2003 WL 22433910 at *9 (N.D. Tex. Aug. 12, 2003), aff'd, 105 Fed.Appx. 6 (5th Cir. 2004), citing Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).