Opinion
No. 2:04-CV-0104.
October 28, 2004
REPORT AND RECOMMENDATION
Plaintiff DARREN WAYNE MILLER, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, 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
Plaintiff complains the defendant utilized excessive force on October 26, 2003, by pushing plaintiff back into his cell and punching him in the face with a fist when plaintiff advanced in an aggressive manner.
Plaintiff requests $100,000.00 in compensatory damages and $100,000.00 in punitive damages, with a prejudgment attachment on defendant's property.
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 to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
By his October 22, 2004 response to the Court's Questionnaire, plaintiff informs the Court he received a major disciplinary case based on the event underlying the instant suit and lost one-hundred-eighty days of goodtime credit as a result. Further, plaintiff informs the Court that his disciplinary case has not been overturned or found to be invalid by any means.
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 terminated favorably to the section 1983 plaintiff. In Edwards v. Balisok, the Supreme Court approved the application of the Heck doctrine to the prison disciplinary setting and held that a state prisoner's claim for damages in a challenge to the validity of the procedures used to deprive him of good-time credits is not cognizable under section 1983. Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997). It appears any judgment in this cause favorable to plaintiff would necessarily call into question the outcome of his disciplinary case and, therefore, plaintiff's claims are barred until the disciplinary determination 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. Bonner, 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).
For the reasons set forth above, it appears plaintiff's claim against defendant MILLER lacks an arguable basis in law and is frivolous until the Heck conditions have been met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
CONCLUSION
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), 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 TONY IRVINE be DISMISSED WITH PREJUDICE TO BEING ASSERTED AGAINST 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 by certified mail, return receipt requested.
IT IS SO RECOMMENDED.