Opinion
2:03-CV-0148
January 14, 2004
REPORT AND RECOMMENDATION
Plaintiff BENJAMIN A. HASSLER, JR., acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis. By his Amended Complaint, plaintiff claims defendants have conspired "to obstruct the Course of Justice in State Court . . . to deny Plaintiff the Equal Protection of the law, and Unjustifiable Detention of Plaintiff."
Plaintiff alleges defendant CARSON COUNTY and defendant commissioners BRITTEN, WARE, STRAWN, and HOWELL have "failed to adopt a Policy, custom or practice that ensures it subordinates of Carson County comply with the law regarding jailtime credits, and have failed to provide an effective mechanism to resolve complaints regarding jailtime deprivation. Further, plaintiff claims these defendants "have failed to properly Supervise Stuart Messer. . . ."
Plaintiff alleges defendant MESSER "has suppressed the facts from Judge John Forbis regarding the miscalculation of plaintiff's jailtime credits due and have [sic] maliciously extended His sentence by 262 days."
Plaintiff further alleges defendant Robertson, the Sheriff of Carson County, failed to properly certify plaintiff's jailtime credits accurately or release records pertaining to plaintiff's arrest date.
Plaintiff also alleges defendant BICHEL, the district clerk, violated his due process rights when she failed to forward a state application for writ of habeas corpus to the Texas Court of Criminal Appeals, which plaintiff states he mailed about April 8, 2003.
Plaintiff requests unspecified declaratory and injunctive relief, as well as compensatory and punitive damages in the amount of $2,000,000.00, as well as costs.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Upon review of plaintiff's complaint, the Court issued a June 16, 2003, show cause order requiring plaintiff to show why defendants were not entitled to qualified immunity; why this Court should not abstain in that plaintiff's claims show his challenge to the length of imprisonment was currently pending in Texas state courts; and why this cause of action is not barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Plaintiff responded on June 24, 2003, and the Court looks to the facts alleged by plaintiff in that response and in his original complaint, as well as in his amended complaint, to flesh out the substance of his allegations.Regarding plaintiff's claim of a conspiracy to deny him access to the courts, plaintiff has failed to state a material fact to support this claim. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983, 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). Review of the pleadings referenced above, reveals plaintiff tries to support this claim by recounting the unsatisfactory resolution of the many actions and pleadings he has filed in state court concerning his request for credit on his sentence for his pre-conviction jailtime. Nevertheless, a review of these actions reveals no basis to support plaintiff's claims.
Specifically, plaintiff points to a 1994 state application for writ of habeas corpus on the issue of his uncredited jailtime which, he says, did not receive a ruling on the merits; however, given that the Texas Court of Criminal Appeals made the ruling, there is nothing to indicate the unsatisfactory ruling was the result of wrongful actions by the defendants. Plaintiff also points to a February 9, 2001, nunc pro tunc motion, and a December 10, 2002, petition for Bill of Review, neither of which ever received a ruling. Plaintiff's pleading in this respect is disingenuous. When plaintiff moved for mandamus to compel the state court to rule, these pleadings were reviewed by the Texas Court of Appeals, Amarillo Division, along with another motion for bill of review. The unpublished opinions are found at In re Hassler, No. 07-01-0273-CV, 2001 WL 830462 (Tex.App.-Amarillo July 24, 2001); In re Hassler, No. 07-03-0119-CV, 2003 WL 1738405 (Tex.App.-Amarillo April 2, 2003), and In re Hassler, No. 07-03-0331-CV, 2003 WL 21919353 (Tex.App.-Amarillo August 12, 2003). In each, the state appellate court explained to plaintiff that an application for writ of habeas corpus was the only avenue to the relief he sought. Significantly, in its April 2, 2003, Unpublished Memorandum Opinion, the Seventh Court of Appeals explained, "[w]e would be doing relator no favor to exercise our discretion to encourage him in the vain pursuit of a proceeding that is void and of no force or effect." For that reason, the court denied plaintiff's petition for writ of mandamus. In re Hassler, No. 07-03-0119-CV, 2003 WL 1738405 at *2-3 (Tex.App.-Amarillo April 2, 2003). Thus, it is clear that plaintiff was not denied any access to the courts by the failure to obtain rulings on these pleadings.
Plaintiff also filed a petition for writ of habeas corpus in this Court on May 29, 2002, cause no. 2:02-CV-0152, which was dismissed November 20, 2002, as time barred. Further, on September 5, 2003, the United States Court of Appeals for the Fifth Circuit denied plaintiff's motion for leave to file a successive application presenting his claim concerning credit for jailtime.
Plaintiff has utterly failed to state a claim of conspiracy on which relief can be granted.
Further, plaintiff's claims against all the defendants except defendant BICHEL, are premised on the assumption that plaintiff is, in fact, entitled to credit for his pre-conviction jailtime; however, that determination has never been made. Any section 1983 claim which attacks the unconstitutionality of a conviction or imprisonment, as the case may be, does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Wells v. Banner, 45 F.3d 90, 94 (5th Cir. 1995) (quoting Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994). Plaintiff repeatedly argues he has utilized all other avenues for relief without success and that a civil rights claim with a request for injunctive relief is his last opportunity to present his claim of wrongly uncredited jailtime.
Although some circuits have concluded from language in the concurring and dissenting opinions in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) that the Supreme Court, if presented with the question, would relax strict application of the Heck favorable termination requirement for plaintiff's who have no procedural vehicle to challenge their conviction, the Fifth Circuit has examined this issue and has decided to leave to the Supreme Court "the prerogative of overruling its own decisions." Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (quoting Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). Instead, the Fifth Circuit has determined 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). Consequently, plaintiff's claims against defendants CARSON COUNTY, STUART MESSER, MIKE BRITTEN, KENNETH WARE, JERRY STRAWN, KEVEIN HOWELL, and G. ROBERTSON do not state a claim on which relief can be granted.
Lastly, plaintiff claims defendant BICHEL violated his Due Process rights and denied him Access to Courts by failing to forward his May 2003 habeas action to the Texas Court of Criminal Appeals. Attached hereto and marked Exhibit A is the disposition of that action by the Texas Court of Criminal Appeals which was obtained from that court. Plaintiff's application was dismissed on July 30, 2003, as a successive application, pursuant to Art. 11.07, section 4, of the Texas Code of Criminal Procedure. Plaintiff completely failed to advise this Court of such action by the Texas Court of Criminal Appeals; however, this disposition demonstrates conclusively that plaintiff's claim against BICHEL has no arguable basis in fact.
CONCLUSION
Pursuant to 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), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff BENJAMIN A. HASSLER, JR., BE 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).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).
IT IS SO RECOMMENDED.