Opinion
2:03-CV-0148
January 24, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff BENJAMIN A. HASSLER, JR., acting pro se and proceeding in forma pauperis, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. On January 14, 2004, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiff's claims under Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section U.S.C. § 1997e(c)(1) and recommending dismissal for failure to state a claim on which relief can be granted, with prejudice as frivolous; and with prejudice to being asserted again until the Heck conditions are met, Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Plaintiff filed his objections on January 23, 2004. Plaintiff also filed "Supplemental Objections" on January 26, 2004. Plaintiff requests de novo review of the pleadings in this cause.
The Court will consider plaintiff's January 23rd and January 26th Objections in conjunction with plaintiff's complaint and hereby reviews all pleadings in this cause de novo. The Court notes that, by the Magistrate Judge's Report and Recommendation, plaintiff has been informed of the defects in his complaint and has had the opportunity to respond or amend as he feels necessary.
Plaintiff has failed to show he suffered any harm from the alleged acts or omissions of the defendants and, indeed, cannot do so because any federal habeas action has been found to be time-barred or impermissibly successive. Further, by his objections, plaintiff does not dispute that his state habeas action has also been denied as successive. Plaintiff makes it clear that this action is brought to redress what he feels is "Unjustifiable Detention " or "illegal detention " and he requests not only monetary relief but unspecified injunctive relief. A determination by this Court of the legality of plaintiff's continued incarceration would "reduce any related state habeas corpus action to `an exercise in futility.'" Consequently, any claim for the requested relief falls under the third guideline discussed in Serio v. Members of La. State Ed. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987), and must be pursued through a habeas action, with its attendant requirement of exhaustion of state remedies. Keenan v. Bennett, 613 F.2d 127, 128-29 (5th Cir. 1980); Alexander v. Ware, 714 F.2d 416, 418-19 (5th Cir. 1983).
See plaintiff's January 14, 2004, Amended Complaint at page 1.
See plaintiff's October 22, 2003, Declaration in Support of Applicant's Motion for Temporary Restraining Order and Preliminary Injunction.
Plaintiff argues Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994) does not apply because he is not attacking his conviction and contends he has no other avenue of relief available. "[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Boyd v. Biggers, 31 F.3d 279, 283 n. 4 (5th Cir. 1994).
Further, 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).
Reading plaintiff's objections in conjunction with his complaint, plaintiff has clarified his complaint against defendant BICHEL. He does not claim a failure to forward his habeas action to the Texas Court of Criminal Appeals, but that it was not forwarded timely. Plaintiff does not dispute that the habeas action received an unfavorable ruling from the Texas Court of Criminal Appeals and, further, although he objects to this Court taking judicial notice of the outcome of this habeas action and the results of plaintiff's various mandamus actions in the Texas Court of Appeals for the Seventh District, plaintiff does not dispute the accuracy of these records. When reviewing a complaint for failure to state a claim, the Court may take judicial notice of public court records and information not in dispute. See, e.g., Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003) (citing Papasan v. Allain, 478 U.S. 265, 268 n. 1, 106 S.Ct, 2932, 2935 n.l, 92 L.Ed.2d 209 (1986)). Plaintiff cannot show he sustained any harm from the alleged acts or omissions of the defendants and, therefore, has failed to state a claim.
Plaintiff's conclusory claims of conspiracy fail to state a claim because they remain completely unsupported by any allegation of material fact. McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990).
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, 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), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff BENJAMIN A. HASSLER, JR., is DISMISSED FOR FAILURE TO STATE A CLAIM; WITH PREJUDICE AS FRIVOLOUS; AND WITH PREJUDICE TO BEING ASSERTED AGAIN UNTIL THE HECK CONDITIONS ARE MET, Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any 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 shall also mail copies of this order to TDCJ-Office of the General Counsel, P.O. Box ENTERED this 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.