Opinion
3:04-CV-2191-P.
January 31, 2005
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, this cause 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 action brought by a county inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Dallas County Jail in Dallas, Texas. Defendants are the Dallas Police Department, Assistant District Attorney Robert Canas, Police Officer Joshua Daniel Cordes, and Defense Counsel Paul R. Shunatona. The court has not issued process in this case. However, on November 5, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on November 15, 2004.
Statement of Case: The complaint, as supplemented by the answers to the magistrate judge's questionnaire, alleges that on November 1, 2003, Officer Cordes illegally stopped Plaintiff because he had the appearance of being intoxicated. (Complaint at 4). Following the stop, Plaintiff informed Cordes that he was taking prescription medication for three broken ribs and was not intoxicated. (Id.). The officer then allegedly fabricated an outstanding warrant and placed Plaintiff under arrest. (Id.). During a search incident to the arrest, the officer uncovered a controlled a substance, which led to Plaintiff's indictment for drug possession in January 2004, in state cause No. F03-74114. (Answer to Questions 1 and 5). Plaintiff is presently awaiting trial on this state charge. (Id.). In this action, he seeks monetary damages for his unlawful arrest as well as for his mental pain and suffering. (Complaint at 4).
Findings and Conclusions: The court 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:
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, 104 L.Ed.2d 338 (1989).
Under Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), the Court must dismiss a complaint brought pursuant to 42 U.S.C. § 1983, when the civil rights action, if successful, would necessarily imply the invalidity of a plaintiff's conviction or sentence, 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. Heck also applies pre-conviction to bar "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) (noting in passing thatHeck prevents the accrual of § 1983 claims that would necessarily imply the invalidity of convictions on pending criminal charges); Escamilla v. Dallas Police Dep't, 2001 WL 1338302, *2 (N.D. Tex., Dallas Div. Oct. 18, 2001) (No. 3:01cv1159-G) (adopting findings and recommendation of magistrate judge).
All circuits that have addressed this issue have concluded that Heck applies to pre-conviction as well as post-conviction cases. See Smith v. Holtz, 87 F.3d 108 (3rd Cir. 1996);Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000);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).
The main focus of Plaintiff's complaint is that he was unlawfully arrested on the basis of a fabricated outstanding warrant. In Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996), the Fifth Circuit held that a plaintiff's false arrest claim was barred by Heck. In so holding, the Circuit stated as follows:
If proved Hudson's false arrest claim necessarily would call into question his conviction as a felon in possession of a firearm. Specifically, if the arresting officers lacked probable cause to arrest Hudson for burglary and the arrest is invalid, the firearm discovered in Hudson's possession as a result of the arrest would be subject to suppression under the Fourth Amendment as the "fruit" of an illegal arrest. See United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995). Moreover, it is improbable that doctrines such as independent source, inevitable discovery and harmless error would permit the introduction of the firearm as evidence in this case: the police discovered the firearm in Hudson's possession when he was knocked from his bike during the burglary arrest and we see no reason reflected in the record before us to believe that the police would have discovered the firearm had they not arrested Hudson for burglary. Thus, because a successful section 1983 action for false arrest on burglary charges necessarily would imply the invalidity of Hudson's conviction as a felon in possession of a firearm, Heck precludes this claim.Id.; see also Queen v. Purser, 2004 WL 1879999 (5th Cir. 2004) (unpublished per curiam), pet. for cert. filed (Nov. 22, 2004) (former inmate's false arrest claim necessarily challenged whether evidence, which officer seized following an allegedly illegal stop, and which led to his subsequent conviction, supplied probable cause for his arrest; thus claim was not cognizable under § 1983, absent showing that conviction had been invalidated).
The same holds true in this case. Plaintiff's false arrest claim, if proved, would call into question any future conviction for drug possession. If this court were to conclude that Defendant Cordes lacked probable cause to arrest Plaintiff, the drugs subsequently discovered in his possession would be subject to suppression. Therefore, this lawsuit implicates the validity of a future conviction for drug possession and, as such, is barred by Heck. See 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."). The District Court should dismiss Plaintiff's complaint with prejudice as frivolous to it being reasserted when theHeck conditions are met. See Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996) (directing that Heck claims be dismissed with prejudice); Hamilton, 74 F.3d at 102 (noting that a § 1983 claim which falls under the rule in Heck is legally frivolous).
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaires as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994);Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976). He, however, has failed to allege any cognizable claim for relief under § 1983. Therefore, the complaint should be dismissed as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's complaint with prejudice as frivolous to it being reasserted when the conditions set out in Heck v. Humphrey are met. See 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff Claude Allen Hamilton, #03082306, Dallas County Jail, Lew Sterrett, 500 Commerce Street, Dallas, Texas 75202.