Opinion
No. 3:01-CV-1454-R
August 12, 2002
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 follow:
FINDINGS AND CONCLUSIONS
I. Background Nature of Case: Plaintiff, Keith L. Somerville, is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division. He brings suit against numerous defendants under 42 U.S.C. § 1983.
Statement of the Case: Plaintiffs civil complaint concerns an alleged conspiracy to kidnap him and falsify government documents. ( See Compl. at 3; Attachment to Compl. between pages 3 and 4.) The alleged conspiracy to kidnap plaintiff centers around his extradition from New York or New Jersey to Texas. ( See Attachment to Compl. between pages 3 and 4.) The alleged falsification of government documents centers around plaintiffs extradition and subsequent indictment. ( See id.) The alleged acts and omissions against the various defendants began in 1987. ( See id.) They allegedly continued through 1989. ( See id.) Nothing in the Complaint indicates that they continued past 1989. In an effort to flesh out the Complaint, the Court, nevertheless, sent interrogatories to plaintiff. Plaintiff therein indicates that the acts and omissions of defendants ceased or ended on January 29, 1992. (Answer to Question 1 of Magistrate Judge's Questionnaire.)
Plaintiff further indicates that his complaint concerns three separate Texas indictments. (Answer to Question 2 of Magistrate Judge's Questionnaire.) He contends that Indictment No. 86-93602-LQ [hereinafter the 86 indictment] formed the basis for his extradition under the Interstate Agreement on Detainers Act. ( Id.) He further contends that Texas dismissed the 86 indictment and in its stead indicted him under a fabricated indictment numbered F-87-94983-NQ [hereinafter the 87 indictment]. ( Id.) He next contends that, during his re-trial, Texas dismissed the 87 indictment and prosecuted him under indictment No. F-91-0224-HQ [hereinafter the 91 indictment]. ( Id.) He also contends that Texas dismissed the 91 indictment and reinstated the 87 indictment after he filed a state writ alleging prosecutorial vindictiveness. ( Id.)
Only the 87 indictment led to a conviction. (Answer to Question 3 of Magistrate Judge's Questionnaire.) Plaintiff has taken steps in state court to challenge that conviction. (Answer to Question 4 of Magistrate Judge's Questionnaire.) The court of appeals reversed the conviction because the "jury was selected in a racially discriminatory manner" and thus remanded the case for a new trial. See Somerville v. State, 792 S.W.2d 265, 266 (Tex.App.-Dallas 1990, pet. ref'd). Plaintiff was re-convicted on retrial and the court of appeals affirmed that conviction. See Somerville v. State, No. 05-92-00395-CR, slip op. (Tex.App.-Dallas Nov. 10, 1993, pet. ref'd) (opinion found at http://www.courtstuff.com/cgi-bin/as_web.exe?c05_93.ask+D+1472056; official internet site of the court of appeals).
II. Screening for Frivolity
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, plaintiffs 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" or "malicious" or if it "fails to state a claim upon which relief may be granted" or "seeks monetary relief against a defendant who is immune from such relief."
A claim 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, furthermore, when it is "based on an indisputably meritless legal theory." Id. at 327. A claim lacks an arguable basis in fact, when it describes "fantastic or delusional scenarios." Id. at 327-28. A complaint fails to state a claim upon which relief may be granted, on the other hand, when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Plaintiff's claims arise out of 42 U.S.C. § 1983. That statute "provides a federal cause of action 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." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.
III. Findings
Plaintiff has no claim that survives summary dismissal. He seeks some relief that is simply unavailable in this civil action. One claim, furthermore, is properly dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). His other claims are barred by the applicable statute of limitations.
A. Available Relief
Plaintiff seeks monetary damages, expungement of his conviction, and unspecified injunctive and declaratory relief. (Compl. at 4.) In answer to Question 7 of the Magistrate Judge's Questionnaire, he clarifies that the unspecified injunctive and declaratory relief he seeks is the "dismissal of both indictments." Release from imprisonment, however, is an inappropriate remedy in an action brought pursuant to 42 U.S.C. § 1983. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974). The dismissal of an indictment is likewise an inappropriate remedy in a § 1983 action. See Carter v. Duggan, 455 F.2d 1156, 1158-59 (5th Cir. 1972) (stating that plaintiff "misconceived his remedy" under § 1983 when he sought "dismissal of the four cases pending against him" as relief). In the absence of some "special circumstance", furthermore, federal courts may not order expunction of public records or order that a state conviction be expunged. See Cavett v. Ellis, 578 F.2d 567, 567 (5th Cir. 1978). In short, "§ 1983 cannot be used to attack the integrity of a state criminal conviction." Id.
Plaintiff has shown no special circumstances that warrant the expungement of his state conviction. Neither that requested relief nor any other requested non-monetary relief survives summary dismissal. Plaintiff has only one proper basis for relief under § 1983, i.e., monetary damages.
In addition, to the extent the Court could construe the instant action as a writ of habeas corpus, the Court declines to do so. Plaintiff has such a writ already pending in this Court. See Somerville v. Cockrell, No. 3:02-CV-0380-L (N.D. Tex. Feb. 22, 2002).
B. Statute of Limitations and Application of Heck
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 based upon alleged acts and omissions of defendants that ceased or ended on January 29, 1992. ( See Answer to Question 1 of Magistrate Judge's Questionnaire.) The lengthy delay between that date and the date plaintiff filed the instant action prompts consideration of the timeliness of the instant action. "Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed," pursuant to § 1915(e)(2)(B). Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). In such circumstances, courts may also dismiss the claims under § 1915A, when it applies. Gonzales v. Wyatt, 157 F.3d 1016, 1019-21 (5th Cir. 1998). The Court "may raise the defense of limitations sua sponte." Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
"The statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state." Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.), cert. denied, 122 S.Ct. 53 (2001). In view of Texas' two-year statute of limitations for personal injury claims, plaintiff "had two years to file suit from the date" his claims accrued. Id.; see also, Hatchet v. Nettles, 201 F.3d 651, 653 (5th Cir. 2000).
Accrual of a § 1983 claim is governed by federal law: "Under federal law, the [limitations] period begins to run `the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" A plaintiffs awareness encompasses two elements: "(1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions." A plaintiff need not know that she has a legal cause of action; she need know only the facts that would ultimately support a claim. Actual knowledge is not required "if the circumstances would lead a reasonable person to investigate further."Piotrowski, 237 F.3d at 576 (citations omitted). In other words, "[t]he cause of action accrues, so that the statutory period begins to run, when the plaintiff knows or has reason to know of the injury which is the basis of the action." Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court, nevertheless, noted that a statute of limitations posed no difficulty while a prisoner pursues state challenges of an alleged unconstitutional conviction or sentence, because actions for damages under § 1983 "attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." 512 U.S. at 489-90.
Heck merely impacts the date of accrual for claims brought pursuant to § 1983 that necessarily imply the invalidity of plaintiffs conviction or sentence. See 512 U.S. at 486-90. Under Heck, the Court must dismiss such claims, unless 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 a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. See id. at 486-87.
In this instance, plaintiff asserts claims relating to his extradition and to three Texas indictments. Only one of the three indictments led to a conviction — the 87 indictment. ( See Answer to Question 3 of Magistrate Judge's Questionnaire.) The claims relating to plaintiffs extradition and the claims relating to the other two indictments have no bearing on the validity of plaintiffs conviction or sentence. Such claims thus do not implicate Heck. Plaintiff has raised only one claim that implicates Heck — his claim that the 87 indictment was fabricated or fraudulent.
If the Court were to grant plaintiff damages for the claimed fraudulent indictment, such ruling would necessarily implicate the validity of plaintiffs conviction. Plaintiff was convicted on that indictment. Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing the instant action. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). Plaintiff has failed to make such a showing. Although he has shown that his initial conviction was reversed on direct appeal, he has subsequently been reconvicted on the same indictment. He has not shown that the subsequent conviction has been reversed, invalidated, or expunged. Consequently, Heck bars consideration of the claim relating to the alleged fraudulent indictment.
The Court recognizes that the Fifth Circuit Court of Appeals has held that the reversal of a conviction with a remand for new trial is sufficient to overcome the Heck bar. See Clay v. Allen, 242 F.3d 679, 681-82 (5th Cir. 2001); Davis v. Zain, 79 F.3d 18, 19-20 (5th Cir. 1996). In both Clay and Davis, however, the plaintiff had not been re-convicted and, more importantly, the raised claims did not necessarily imply the invalidity of any future conviction. The reversals had fully adjudicated the issues and thus the raised claims would have no impact on the validity of any future conviction. See Clay, 242 F.3d at 681-82; Davis, 79 F.3d at 19-20. That is not the case here. As stated in Clay, the "threshold question" for determining whether Heck bars plaintiff from proceeding with claims under 42 U.S.C. § 1983 is whether success on such claims "would necessarily imply the invalidity of a criminal conviction." 242 F.3d at 682. If plaintiff were to succeed on his claim relating to the alleged fraudulent 87 indictment, such claim appears to necessarily imply the invalidity of his conviction. Consequently, the Court should find that plaintiffs claim relating to the alleged fraudulent 87 indictment is barred by Heck.
Were the Court to find that the earlier reversal of plaintiffs conviction indeed lifted the Heck bar, the otherwise barred claim would, nevertheless, be untimely and thus subject to dismissal with prejudice on that basis.
The claim of plaintiff for monetary damages for the alleged fraudulent indictment is "legally frivolous" within the meaning of 28 U.S.C. § 1915. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). A "claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Id. at 102.
Other than the claim barred by Heck, plaintiffs claims accrued no later than January 1992. Plaintiffs complaint as supplemented by his answers to the Magistrate Judge's Questionnaire establishes that, as of that date, he knew of the facts that form the basis for his complaint. Despite such knowledge, he did not file the instant suit until July 2001. It thus appears clear that this cause of action is time-barred, except to the extent Heck applies to the single claim discussed above. The Court may, therefore, summarily dismiss plaintiffs other claims for the failure to timely file them. See Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (holding that court may summarily dismiss the complaint filed in forma pauperis, if it is "clear" that claims asserted are barred by limitations).
If not tolled, limitations generally continue "to run until the suit is commenced by the filing of the plaintiffs complaint in the clerk's office." Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998). In the absence of tolling and to the extent Heck does not apply to the claims raised by plaintiff, this action is untimely. Plaintiff filed it after the two year statute of limitations had expired. Nothing indicates that the limitations period should be tolled. Nothing indicates that equitable tolling is warranted under Texas law. Consequently, plaintiffs claims (other than the one barred by Heck) 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 period of limitations.
"Because the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control." Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DISMISS plaintiffs claim relating to the fabricated or fraudulent indictment 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 further recommended that the Court DISMISS plaintiffs other claims with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B) and 1915A(b) without regard to future satisfaction of the Heck conditions for failure of plaintiff to file them within the statutory period of limitations.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).