Opinion
3:04-CV-1578-B.
December 15, 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 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 state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Jester III Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Richmond, Texas. Defendants are the Dallas City Police Department, and Police Officers Nekheel P. Galtonde, Stanley Richard Verbal, Misty Vancuren, and White. The court has not issued process in this case. However, on July 27, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on August 23, 2004.
Statement of Case: The complaint, as supplemented by the answers to the magistrate judge's questionnaire, alleges the Defendants used excessive force during the course of Plaintiff's arrest on February 25, 2003. (Complaint at 3 and answer to Question 10 of the magistrate judge's questionnaire). While Plaintiff was handcuffed, Defendants allegedly flung him to the ground, kicked and "stumped" him. (Answer to Question 10). After dragging him to the police car, Defendants continued the attack on Plaintiff by allegedly hitting him with "straight batons," which caused him to lose consciousness on the icy pavement. (Id.). Following his placement in the police car, Plaintiff alleges that Officer Vancuren hit him in the mouth three times following a verbal exchange with the officer. (Id.). As a result of the use of force outlined above, Plaintiff claims he endured "a whole [sic]" in his left elbow and right shin, a pulled joint in his left arm, stomach problems and pains, and emotional distress and mental anguish. (Answer to Question 8). He seeks monetary compensation for Defendants' participation in assaulting him.
Following his arrest, Plaintiff was charged with and convicted of aggravated assault on a public servant, and unlawful possession of a prohibited weapon in the 194th Judicial District Court in Dallas County, Texas, Cause Nos. F03-48924, and F03-48925. (Answer to Questions 1-2, and 6-7). Punishment was assessed at twenty-five years imprisonment in both cases. Direct appeals are presently pending in both cases before the Fifth Court of Appeals at Dallas. (Answer to Question 7). Plaintiff concedes that both charges arise out of the circumstances of the arrest at issue in this case. (Answer to Question 5).
The court has verified the pendency of Plaintiff's direct appeals from the Fifth District Court of Appeals' website. See Johnson v. State, No. 05-04-00143-CR, www.courtstuff.com/FILES/05/04/05050143.HTM.
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).
Plaintiff seeks to sue the Dallas Police Department in addition to the arresting police officers. It is well settled that a plaintiff may not bring a civil rights claim against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. See Darby v. Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991). InDarby, the Fifth Circuit held that "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. Plaintiff has failed to show that the Dallas Police Department has ever been granted the capacity to sue or be sued (see answer to Questions 3) and, as such, it should be dismissed with prejudice.
Plaintiff's claims against the arresting police officers for use of excessive force is also subject to dismissal at the screening stage. Assuming arguendo that Plaintiff has alleged sufficient facts in his complaint and answers to the questionnaire to state an excessive force claim against the arresting officers, the court must determine whether such a claim is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and its progeny.
Under Heck, a party may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or a federal habeas court has determined that his conviction is in fact invalid or otherwise legally infirm. Id. at 486-87, 114 S.Ct. at 2364. Heck bars claims for "unconstitutional conviction or imprisonment" as well as claims "for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid." Id. at 486, 114 S.Ct. 2364. Thus, unless his conviction has been overturned, a plaintiff cannot bring a § 1983 claim if prevailing on that claim would imply that his conviction was in fact invalid.
The Fifth Circuit has recognized that certain convictions will prevent a plaintiff from bringing an excessive force claim. InArnold v. Town of Slaughter, 100 Fed. Appx. 321, 2004 WL 1336637 (5th Cir. Jun 14, 2004) (unpublished per curiam), it summarized its prior decisions as follows:
For instance, we have held that a Texas conviction for aggravated assault on a police officer bars claims for excessive force related to the same conduct. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999). We reached this holding after determining that Texas law permits an officer to use any force — even deadly force — to protect against an aggravated assault. Sappington, 195 F.3d at 237. Because any force was justified in response to an assault, a finding that the officers used excessive force would necessarily mean that the plaintiff had not committed aggravated assault. Id.Id. 100 Fed. Appx. at 323, 2004 WL 1336637, at *2.
The same holds true in this case. Plaintiff alleges that he did nothing wrong, but was viciously attacked for no reason while in handcuffs. (Answer to Question 10). These facts, if proved, squarely challenge the factual determination that underlies his conviction for aggravated assault on a public servant, including any a claim of self-defense which may have been raised at trial. See Tex. Penal Code Ann. § 9.31(c)(1) (Vernon Supp. 2004) (use of force to resist arrest is justified only if, inter alia, the arresting officer uses "greater force than necessary" " before the actor offers any resistance");Letson v. State, 805 S.W.2d 801, 805 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (defendant required to show excessive force on part of police officer before justification of self-defense is available). As such, plaintiff's excessive force claim against Defendants squarely challenges the factual determination that underlies his conviction for aggravated assault on a public servant and is barred by Heck. A finding in favor of Johnson on his excessive force claim would necessarily mean that he did not commit the offense of aggravated assault on a public servant for which he presently stands convicted. Therefore, his lawsuit in turn impugns the validity of his conviction and is barred byHeck.
Plaintiff is precluded from maintaining a civil cause of action unless and until he receives a ruling declaring his aggravated assault conviction invalid. Heck, 512 U.S. at 488-89; accord Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) ("Because [plaintiff] is seeking damages pursuant to § 1983 for unconstitutional imprisonment and he has not satisfied the favorable termination requirement of Heck, he is barred from any recovery. . . ."). The complaint should be dismissed with prejudice to it being reasserted when the Heck conditions are met. See Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's claim against the Dallas Police Department with prejudice as frivolous.
It is further recommended that Plaintiff's claim against the arresting police officers, Nekhell P. Galtonde, Stanley Richard Verbal, Misty Vancuren, and White, be dismissed with prejudice as frivolous to it being reasserted when the conditions set out inHeck 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 Russell Dean Johnson, #1216180, TDCJ, Jester III Unit, Rt. 2, Richmond, Texas 77469.