Opinion
3:04-CV-0778-D consolidated with (3:04-CV-0799-D).
July 13, 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 consolidated civil rights action brought by a state inmate pursuant to 42 U.S.C. § 1983. Parties: Plaintiff is presently incarcerated at the Polunsky Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Livingston, Texas. Defendants are Court Probation Officer/Supervisor Emily Alestine and the Dallas County Community Supervision and Corrections Department. The court has not issued process in this case. However, on May 17, 2004, prior to consolidation of this action, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on May 27, 2004. Statement of Case: The amended complaint and supplement thereto, filed on April 29, 2004 in No. 3:04cv778-D, and the original complaint filed on April 13, 2004, in No. 3:04cv799-D, challenge the decision to revoke Plaintiff's probation and imposition of a ten-year sentence in early 2001 as violative of the Eighth Amendment Cruel and Unusual Punishment Clause. (See also Answer to Questions 3 and 6 of the Magistrate Judge's Questionnaire). Plaintiff alleges that his probation revocation was based on two grounds: (1) an old dirty urine analysis (dirty UA) from December 1999, and (2) an argument stemming from Plaintiff's alleged failure to report for mental health or "MHMR" treatment shortly after he was reinstated to probation on January 7, 2001, following his plea to a separate charge. According to Plaintiff Defendants should not have relied on the one-year old dirty UA because he had followed Ms. Alestine's warning in January 2000 to have clean UAs and to seek AA and drug counseling. He further alleges that relying on his mental health to revoke his probation, as though it were a crime, amounts to a civil rights violation. Plaintiff requests monetary relief against the named Defendants. (Answer to Question 5). Findings and Conclusions: The court has 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:
On April 13, 2004, Plaintiff filed the complaint in No. 3:04cv778-D against Emily Alestine and Community Supervision and Corrections. Two days later, Plaintiff submitted a similar complaint against Community Supervision and Correctional Department, which was assigned No. 3:04cv799-H. The latter action was subsequently transferred to the docket of District Judge Sydney A. Fitzwater, who in turn consolidated it with the first action on May 24, 2004.
Plaintiff's amended complaint also seeks to name as defendant the "probation court of Frank Crowley Courts Building." (Amended Complaint filed in No. 3:04cv0778-D at ¶ VI). As more fully set out below Plaintiff's claims are premature regardless of the defendants named in this consolidated action.
He also requests workman compensation for the loss of his job (Answer to Question 5), appointment of counsel to challenge his probation revocation in state court (Answer to Question 6), and commutation of his remaining sentence to parole (Handwritten supplement attached to complaint filed in No. 3:04cv0799-D). None of the above requests are cognizable in this civil rights action.
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 (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." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff's claims for monetary relief are connected to the legality of his probation revocation and imposition of a ten year sentence. A finding in favor of Plaintiff on any of his claims against Ms. Alestine and Community Supervision and Correction would imply the invalidity of his probation revocation which is the basis for his present confinement in TDCJ-CID.
Under Heck v. Humphrey, 512 U.S. 477 (1994), the court must dismiss a civil action based on the legality of a prior criminal conviction or sentence unless a federal court has determined that the conviction or sentence is in fact invalid or otherwise legally infirm. See Heck, 512 U.S. at 486-87; Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). The Fifth Circuit has extended Heck to proceedings that call into question the fact or duration of parole and probation revocation. See Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (parole revocation); Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (probation and parole revocations);McGrew v. Texas Bd. of Pardons and Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (parole revocation). Under such circumstances, the § 1983 action is subject to dismissal under Heck absent a showing that the confinement resulting from the parole or probation revocation proceedings has been invalidated by a state or federal court. Littles, 68 F.3d at 123; Jackson, 49 F.3d at 177.
Plaintiff's pleadings indicate that such a determination has never been made. On the contrary, it is clear that Plaintiff neither filed an appeal nor a habeas action challenging his probation revocation. (Answer to Question 4). Plaintiff is therefore precluded from maintaining a civil cause of action unless and until he receives a ruling declaring his probation revocation 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 District Court should dismiss Plaintiff's claims with prejudice to them 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 consolidated action with prejudice as frivolous to it being reasserted when the Heck conditions are met. 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff Andrey Bernard Moore, #1035610, TDCJ, Polunsky Unit, 3872 FM 350 South, Livingston, Texas 77351.