Opinion
No. 3:03-CV-2687-G.
April 29, 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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Parties
Plaintiff is currently confined in the Texas Department of Criminal Justice, Correctional Institutions Division. He brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis. Defendants are attorney David Pickett, Sheriff Jim Bowles and witness Gail Johnson.
II. Background
On February 14, 2003, Plaintiff was convicted of aggravated assault with a deadly weapon. Plaintiff alleges his defense attorney, David Pickett, violated his civil rights by failing to adequately investigate the facts of his criminal case, and by advising him to plead guilty to the charges. Plaintiff claims Sheriff Jim Bowles failed to adequately investigate the criminal charges against him and did not inform him of the nature of the charges. Finally, he states that witness Gail Johnson falsely accused him of the aggravated assault at trial.
III. Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
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 suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Both § 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is frivolous or fails to state a claim upon which relief may be granted. A complaint is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
IV. Discussion
1. Defendants Pickett and Johnson
Plaintiff claims his defense attorney David Pickett and witness Gail Johnson violated his civil rights. To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States; and (2) a deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). The Fourteenth Amendment of the Constitution provides in part that "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." The Fourteenth Amendment prohibits only that action which may be fairly attributed to the States. Shelley v. Kramer, 334 U.S. 1, 13 (1948). The Fourteenth Amendment does not shield purely private conduct, however discriminatory or wrongful. Id.; see also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974); Adickes v. S.H. Kress Co., 398 U.S. 144, 169 (1970).
Plaintiff has failed to show that witness Gail Johnson acted under color of state law. Further, witnesses are entitled to immunity for their trial testimony. See Briscoe v. LaHue, 460 U.S. 325 (1983). Plaintiff has also failed to show his attorney acted under color of state law. Attorneys do not act under color of state law when they perform a lawyer's traditional function as defense counsel in a criminal proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981). Accordingly, Plaintiff's civil rights claims against Defendants Pickett and Johnson are frivolous and should be dismissed.
2. Sheriff Bowles
Plaintiff claims Sheriff Bowles violated his civil rights by failing to adequately investigate the charges against him and by failing to adequately inform him of the charges. In Heck v. Humprey, 512 U.S. 477 (1994), the Supreme Court held that a § 1983 claim attacking the constitutionality of a conviction or imprisonment does not accrue until that conviction or sentence 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." Heck, 512 U.S. at 486-87. Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a conviction or pending charge. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff claims against Sheriff Bowles are clearly connected to the legality of his present confinement. A finding in favor of Plaintiff would imply the invalidity of his conviction. Plaintiff, however, states that his conviction has not been reversed, expunged, or otherwise invalidated. ( See Magistrate Judge's Questionnaire, Answer No. 2). Hence, no § 1983 cause of action has yet accrued and these claims should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met).
RECOMMENDATION
The Court recommends that Plaintiff's claims against Defendants Pickett and Johnson be dismissed with prejudice as frivolous. The Court further recommends that Plaintiff's claims against Sheriff Bowles be dismissed with prejudice until the Heck conditions are met.