Opinion
No. 3:03-CV-2279-D.
September 28, 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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff, a prisoner in the Federal Correction Institution (FCI) located in Seagoville, Texas, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against Paul D. Stickney, United States Magistrate Judge; A. Joe Fish, United States District Judge; Barefoot Sanders, United States District Judge; Angie Henson, Assistant United States Attorney; St. Clair Theodore, Assistant United States Attorney; Alan Greenspan, defense attorney; K.J. Wendt, Warden of FCI Seagoville; and Special Agent Mike Ward of the Federal Bureau of Investigation. (Compl. at 1.) Plaintiff alleges violations of his constitutional rights, violations of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1962, and common law fraud and deceit. ( Id. at 2.)
In Bivens, the United States Supreme Court held that the violation of a person's constitutional rights by a federal official may give rise to an action in federal court, brought pursuant to 28 U.S.C. § 1331.
On July 30, 1992, the United States government indicted plaintiff on four counts of robbery affecting interstate commerce and two counts of using and carrying a firearm during a felony. ( Id. at 2.) Plaintiff pled guilty to all six counts on November 3, 1992. ( Id.) Since that time, he has unsuccessfully pursued an appeal of his conviction, three motions to vacate under 28 U.S.C. § 2255, and a petition for writ of habeas corpus under § 2241. ( Id. at 3.)
In this action, plaintiff claims that he is actually innocent of the gun charge in Count 6 of the based on the Supreme Court's holding in Bailey v. United States, 516 U.S. 137 (1995). ( Id.) He appears to contend that the denial of his § 2255 motion has deprived him of his constitutional right "to challenge a[n] unconstitutional conviction and the execution of due to an invalid plea." ( Id.) He asserts that all defendants "entered a scheme plainly designed to corrupt the legitimacy of the truth seeking process and gain a conviction by fraud," and that defendants obstructed justice and exceeded the scope of their authority. ( Id. at 1.) He also claims that defendants retaliated against him "for his exercising his rights." ( Id.) Plaintiff seeks monetary, injunctive, and declaratory relief. ( Id. at 2.) No process has been issued in this case.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal if the Court finds the complaint frivolous. A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994) "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
III. AVAILABLE RELIEF
Plaintiff seeks monetary, declaratory, and injunctive relief in this action, including invalidation of his guilty plea and resulting convictions, fines and restitution, and a jury trial on the criminal charges against him. Such relief is not appropriate for actions brought pursuant to 42 U.S.C. § 1983. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974) (holding that release from imprisonment is an inappropriate remedy under § 1983). Such requested relief is also not appropriate for actions under Bivens and RICO. Thus, the requested declaratory and injunctive relief does not survive summary dismissal, and plaintiff's only potentially viable claim for relief in this action is his request for monetary damages.
The Court declines to construe this civil action as another motion to vacate. Plaintiff has already collaterally attacked his federal convictions four times. Construing the instant action as a motion to vacate would merely result in its dismissal as successive.
IV. IMMUNITY
Because plaintiff sues three judges and two prosecutors for monetary damages, this action raises issues of immunity. When an action raises an issue of immunity, the Court determines that issue as early in the proceedings as possible to the extent it is feasible. Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995); Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Such early determination "best serves the purposes underlying the absolute immunity doctrine." Boyd, 31 F.3d at 284. Consequently, the Court considers the question of immunity before specifically addressing plaintiff's claims.
A. Judicial Immunity
Plaintiff seeks monetary damages from three federal judges for their part in his criminal convictions and the subsequent denials of his collateral attacks of such convictions. ( See Compl. 1-5.) However, the United States Supreme Court has recognized absolute immunity for judges acting in the performance of their judicial duties. See Nixon v. Fitzgerald, 457 U.S. 731, 745-46 (1982). Judges are immune from suit for damages resulting from any judicial act unless performed in "the clear absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-357 (1978); Young v. Biggers, 938 F.2d 565, 569 n. 5 (5th Cir. 1991). Furthermore, allegations of bad faith or malice do not overcome judicial immunity. Mireles, 502 U.S. at 11.
Although plaintiff alleges generally that the actions of defendants "exceed[ed] the scope of their authority", he makes no specific allegation that any judge acted outside the scope of his judicial duties. He makes no specific allegation suggesting that any named judge acted without jurisdiction. The judicial defendants are absolutely immune to any claims based on the performance of their judicial duties. To the extent plaintiff seeks damages from the defendant judges for judicial acts within their jurisdiction, the Court should dismiss such claims based on judicial immunity.
B. Prosecutorial Immunity
Plaintiff also seeks monetary damages from two Assistant United States Attorneys for acts apparently related to plaintiff's prosecution. ( See Compl. at 1-5.) Prosecutors, however, enjoy absolute immunity to initiate and pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Again, although plaintiff alleges generally that the actions of defendants "exceed[ed] the scope of their authority", he has made no specific allegation that the two prosecutors acted other than in their adjudicative role as prosecutors. It thus appears that they also have absolute immunity against plaintiff's claims. To the extent plaintiff seeks damages from the defendant prosecutors for the initiation and pursuit of his criminal prosecution, the Court should dismiss such claims due to prosecutorial immunity.
V. BIVENS CLAIMS
Plaintiff sues numerous federal officials and his defense attorney for events related to his 1992 federal conviction under Bivens. To state a viable Bivens claim, plaintiff must show that defendants have deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (stating that 42 U.S.C. § 1983 provides a federal cause of action and affords redress for the "deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States"); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) (noting that "[a] Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials").
When a prisoner seeks monetary damages in a Bivens action, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if so, the complaint must be dismissed unless the plaintiff demonstrates that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by collateral proceedings under 28 U.S.C. §§ 2254 or 2255. See Heck, 512 U.S. at 486-87 (§ 1983 action); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (extending Heck's applicability to Bivens actions). This holding has been extended to civil rights actions seeking declaratory or injunctive relief as well as damages. See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998).
In this instance, the crux of plaintiff's complaint is that defendants "entered a scheme" to deprive him of his constitutional right to challenge his conviction. If plaintiff can prove his allegations, such success would necessarily call into question his conviction. Plaintiff's allegations and the validity of his conviction are inseparable. If the Court were to grant plaintiff damages under the facts of this case, such a ruling would necessarily implicate the validity of his federal conviction in United States v. Silva, No. 3:92-CR-342-G(N.D. Tex.). Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under Bivens. See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (extending Heck's applicability to Bivens actions).
Plaintiff has failed to make such a showing. The Court takes judicial notice of United States v. Silva, No. 3:92-CR-342-G (N.D. Tex.) and notes that his conviction remains valid. As shown by his ongoing incarceration resulting from that conviction, his conviction has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by any collateral proceeding. In fact, as recognized by plaintiff, this Court has denied plaintiff's four prior collateral attacks against his conviction. His direct appeal also failed.
For these reasons, plaintiff's Bivens claims are "legally frivolous" within the meaning of 28 U.S.C. § 1915. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). The Court should dismiss these claims "with prejudice to their being asserted again until the Heck conditions are met." Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); accord Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994) (upholding dismissal with prejudice); Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (same).
VI. RICO CLAIMS
Plaintiff also asserts claims under RICO, 18 U.S.C. § 1962(a)-(d). The Fifth Circuit Court of Appeals has reduced these subsections to their "simplest terms" as follows:
(a) a person who has received income from a pattern of racketeering activity cannot invest that income in an enterprise;
(b) a person cannot acquire or maintain an interest in an enterprise through a pattern of racketeering activity;
(c) a person who is employed by or associated with an enterprise cannot conduct the affairs of the enterprise through a pattern of racketeering activity; and
(d) a person cannot conspire to violate subsections (a), (b), or (c).See Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995). Each subsection requires: "(1) a person who engages in (2) a pattern of racketeering activity (3) connected to the acquisition, establishment, conduct, or control of an enterprise." Delta Truck Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir. 1988) (emphasis in original).
"To avoid dismissal for failure to state a claim, a plaintiff must plead specific facts . . . which establish the existence of an enterprise." Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). Plaintiff has pled no facts that suggest, let alone establish, the existence of any enterprise. Because plaintiff's allegations have nothing to do with the acquisition, establishment, conduct, or control of any enterprise as required under RICO, he has failed to state a RICO claim upon which the Court can grant relief. Consequently, the Court recommends dismissal with prejudice.
VII. PENDENT STATE LAW CLAIMS
Plaintiff also asserts claims based upon fraud and deceit. (See Compl. at 4-5.) Although these claims arise under state, rather than federal law, the Court may exercise supplemental jurisdiction over the pendent state law claims. See 28 U.S.C. § 1367.
The elements of common law fraud are that (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with the intent that it should be acted upon by the party; (5) the party acted in reliance upon the representation; and (6) the party thereby suffered injury.Gibson v. Fauber, ___ S.W.3d ___, ___, No. 12-02-00249-CV, 2004 WL 2002560, at *6 (Tex.App.-Tyler, Sept. 8, 2004) (citing Eagle Prop., Ltd. v. Scharbauer, 807 S.W.2d 714, 723 (Tex. 1990)).
To the extent plaintiff asserts state claims of fraud and deceit, such claims are barred by the statute of limitations. Such claims must be brought within four years of their accrual. See Tex. Civ. Prac. Rem. Code Ann. § 16.004 (a) (4). Fraud claims accrue when the plaintiff knows, or in the exercise of reasonable diligence, should have known of the wrongful injury. See Computer Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455-56 (Tex. 1996). Plaintiff's allegations of fraud concern his 1992 guilty pleas and subsequent attempts to overturn such pleas commencing in 1995, after the Bailey decision. He asserts that, in view of Bailey, his conviction was obtained through the fraud of defendants. He has been fully aware of the facts that give rise to his fraud claims since at least 1995. Consequently, he filed the instant complaint well after the applicable statutes of limitations had expired. Plaintiff asserts no basis for equitable tolling under Texas law. Furthermore, nothing indicates that such tolling is warranted. Consequently, plaintiff's pendent state claims should be dismissed as frivolous under 28 U.S.C. §§ 1915(e)(2) and 1915A for the failure of plaintiff to file them within the statutory periods of limitations.
VIII. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff's claims against the judicial and prosecutorial defendants with prejudice based on immunity. It is further recommended the District Court DISMISS plaintiff's claims pursuant to Bivens with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994). It is also recommended that the Court summarily DISMISS plaintiff's RICO claims with prejudice for failure to state a claim upon which relief can be granted. Finally, it is further recommended that the Court summarily DISMISS plaintiff's pendent state-law claims with prejudice for the failure of plaintiff to file such claims within the applicable period of limitations. The dismissal of this action will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.