Opinion
Civil No. SA-05-CA-0904-RF.
March 31, 2006
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on September 26, 2005 (Docket No. 4). The cause was transferred to the Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Court Rules 1(d) and (h) for review and issuance of a memorandum and recommendation regarding Plaintiff's claim under 42 U.S.C. § 1983, complaining of the revocation of his parole. As required by 28 U.S.C. § 1915A, the Magistrate Judge screened Plaintiff's complaint to determine whether it is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief. After considering the complaint and the applicable law, the Magistrate Judge recommended that the lawsuit be dismissed as frivolous. After due consideration, the Court finds that the Magistrate Judge's Memorandum and Recommendation (Docket No. 4) should be ADOPTED IN ITS ENTIRETY and the Plaintiff's complaint be DISMISSED with prejudice until the Heck conditions are met.
Docket No. 4 at 3.
BACKGROUND
Proceeding in forma pauperis, Plaintiff filed his original complaint on September 26, 2005, alleging violations of his Fourth and Fourteenth Amendment rights. Plaintiff claims that police officers committed these violations in June of 2003, when they searched a room in which Plaintiff was located and found guns and drugs. The crux of Plaintiff's complaint is that these alleged violations, along with alleged subsequent perjury by the officers, resulted in the revocation of his parole on technical violations and left him imprisoned for a substantially longer period of time than other persons whose parole was revoked on technical grounds.
See Docket No. 2.
Docket No. 3 at 4. Plaintiff also complains of prison conditions, and lack of court-appointed counsel. Id. Plaintiff has previously requested counsel, and has been denied twice. Docket No. 7, 9-11.
Id. at 6.
Id. at 4-7.
After screening Plaintiff's complaint, the Magistrate Judge recommended that it be dismissed as frivolous, because conditions required by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), have not been met. Plaintiff timely filed objections to the Magistrate's recommendation, and the Court addresses these objections below.
Docket No. 4 at 4.
DISCUSSION
I. Standard of Review -Magistrate Judge's Memorandum and Recommendation
The Court reviews de novo the portions of the Magistrate Judge's Memorandum and Recommendation to which a party files objections within ten days of service. The Local Court Rules for the Western District of Texas require that the "written objections . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Thus, the Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. Plaintiff Mackey has filed objections to the Magistrate's Memorandum and Recommendation in this case. Therefore, the Court considers and addresses these objections under a de novo standard.
LOCAL RULE R. 4(b) at App. C ("Assignment of Duties to United States Magistrate Judges").
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
28 U.S.C. § 636(b)(1); United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Docket No. 6.
Docket No. 4.
II. Plaintiff's Objections to the Memorandum and Recommendation
Plaintiff's objections begin and end with a reiteration of the assertion that his constitutional rights have been violated. He argues, in essence, that this case is not primarily about the revocation of parole that occurred as a result of the alleged constitutional violations. In between, Plaintiff again asserts a need for court-appointed counsel. Plaintiff reiterates his complaints of unsanitary and unsafe prison conditions, and has also attached exhibits consisting of hearing transcripts and officer's reports. For the reasons discussed below, these objections are without merit.
Docket No. 6 at 1-3, 13.
Id. at 2.
Id.
Id. at 3, 6-7.
Id. at ___.
First, the Court notes that prisoners are not generally barred from bringing actions under 42 U.S.C. § 1983 to complain of prison conditions. However, the code also provides that no such action "shall be brought with respect to prison conditions under section 1983 of this title . . . until such administrative remedies as are available are exhausted." Plaintiff has neither alleged nor shown that he has exhausted administrative remedies available for his grievances over prison conditions. Consequently, the law does not allow Plaintiff to bring an action under 42 U.S.C. § 1983 to complain of prison conditions at this time. Accordingly, Plaintiff's complaints regarding prison conditions are dismissed.
Next, the Court briefly addresses Plaintiff's desire to have counsel appointed. Plaintiff has previously made two requests for counsel, both of which this Court denied. The Court again denies Plaintiff's request for counsel, for the same reasons stated in the first order denying counsel.
Docket Nos. 7, 10.
Docket Nos. 9, 11.
See Docket No. 9 (denying Plaintiff's first request for counsel failure to present "exceptional circumstances" which might warrant such an appointment).
Lastly, the Court addresses Plaintiff's assertion that this case is not primarily about the revocation of his parole, but is rather primarily about constitutional violations. As the Magistrate Judge ably explains, the U.S. Supreme Court has spoken directly to the issue at hand. In Heck v. Humphrey, the Supreme Court held that in order to recover for an unconstitutional conviction or imprisonment, a plaintiff must prove that said conviction or sentence as been set aside through the regular appellate process, or called into question by a federal court's issuance of a writ of habeas corpus. If ruling in a plaintiff's favor would necessarily imply that his conviction or sentence was invalid, the claim is not cognizable under § 1983. The Fifth Circuit has held that actions regarding parole revocation, which call into question the validity or length of confinement, fall under the Supreme Court's ruling in Heck. Consequently, if Plaintiff's action calls into question the length of his confinement or the validity of his parole revocation, his action is not cognizable as it was filed, under § 1983.
Docket No. 6 at 2.
See Docket No. 4 at 3.
512 U.S. 477, 486-87 (1994).
Id. at 487.
McGrew v. Texas Board of Pardons and Paroles, 47 F.3d 158, 161 (5th Cir. 1995).
Plaintiff's objections clearly state that the result of the alleged constitutional violations was that his "discharge date was . . . pushed back." This is a clear assertion that the alleged violations caused an unfair length of confinement. Ruling that the officers did commit the alleged violations would therefore necessarily imply that the duration of Plaintiff's confinement was invalid. Additionally, Plaintiff alleges that the defendant officers' violations continue to influence his parole status. Again, ruling in Plaintiff's favor as to the violations would clearly imply that his parole status is invalid. The Plaintiff has neither alleged nor shown that these parole proceedings have been overturned or declared invalid by the regular state appellate process, or by a federal court through habeas corpus.
Docket No. 6 at 2.
Id. at 4.
The Supreme Court and the Fifth Circuit have clearly stated that in such circumstances, a plaintiff may not bring his complaint under 42 U.S.C. § 1983. Consequently, this Court is agreement with the Magistrate Judge's finding that Plaintiff's claims are frivolous because they lack an arguable basis in law. Because the law authorizes dismissal of an in forma pauperis proceeding which is frivolous, the Court therefore finds that Plaintiff's final claims should be dismissed with prejudice to their being asserted again until the conditions set forth in Heck have been met. The proper vehicle to attack the validity of his confinement would be through the state's appellate process or through a habeas corpus action.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); McGrew v. Texas Board of Pardons and Paroles, 47 F.3d 158, 161 (5th Cir. 1995).
See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
Should the Plaintiff, who is proceeding pro se, assert that his claims here should be construed as an application for writ of habeas corpus, the claims would still be denied. The law provides an application for writ of habeas corpus shall not be granted unless it appears that the plaintiff has exhausted the remedies available through the State, that there is an absence of State corrective process, or that such process would be ineffective to protect the plaintiff's rights. Plaintiff has failed to even allege any of these prerequisite conditions. Consequently, to the extent that this action might be construed as an application for writ of habeas corpus, it is also denied.
CONCLUSION
Accordingly, the Court ORDERS that the Magistrate Judge's Memorandum and Recommendation (Docket No. 4) be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Plaintiff's requests for relief be DENIED and that the action be DISMISSED with prejudice to being asserted again until the Heck conditions are met.