Seymore v. City and County of Denver Clerk of Court State of Colorado et al

Filing 9

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 6/16/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00653-GPG
CHRISTABLE E. SEYMORE,
Plaintiff,
v.
CITY AND COUNTY OF DENVER CLERK OF THE COURT STATE OF COLORADO,
KAREN MCGOVERN, Public Defender/Office, and
STATE FOR THE DISTRICT OF COLORADO,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Christable E. Seymore, is detained at the Denver County Jail. He has
submitted, pro se, a Prisoner Complaint asserting claims under 42 U.S.C. § 1983 for
deprivation of his constitutional rights. (ECF No. 1).
Mr. Seymore has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Subsections (e)(2)(B)(i) of § 1915 require a court to dismiss sua
sponte an action at any time if the action is frivolous. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319,
324 (1989).
The Court must construe Mr. Seymore’s Complaint liberally because he is
representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the
pro se litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, this

action will be dismissed.
Mr. Seymore’s allegations are largely incomprehensible. However, Plaintiff
appears to assert that one or more convictions and sentences imposed by the Denver
District Court or the Denver County Court violated his federal due process rights. He
further asserts that the wrongful prosecution(s) were, in part, the result of the ineffective
assistance of counsel. For relief, Plaintiff requests damages, removal of a felony
conviction from court records, and “correction of his CBI report.” (ECF No. 1, at 19).
Plaintiff’s § 1983 action is premature. Under Heck v. Humphrey, 512 U.S. 477
(1994), if a judgment for damages favorable to a prisoner in a 42 U.S.C. § 1983 action
necessarily would imply the invalidity of a prisoner’s criminal conviction or sentence, the
§ 1983 action does not arise until the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by an authorized state
tribunal, or called into question by the issuance of a federal habeas writ. Id. at 486-87.
On April 2, 2015, Magistrate Judge Gallagher issued an Order directing Plaintiff
to show cause, within 30 days, why this action should not be dismissed under the rule of
Heck. (ECF No. 6). Mr. Seymore was thereafter granted an extension of time, until
June 8, 2015, to respond to the Order to Show Cause. (ECF No. 8). Plaintiff has not
filed a response to date, nor has he communicated with the Court since April 21, 2015.
Because Mr. Seymore has not shown that the state district or county court
convictions or sentences have been invalidated, his § 1983 claims are barred by Heck.
See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (reaffirming that “a state prisoner's
§ 1983 action is barred (absent prior invalidation)–no matter the relief sought (damages
or equitable relief), no matter the target of the prisoner's suit (state conduct leading to
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conviction or internal prison proceedings)–if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.”). A dismissal under Heck is
without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996).
Mr. Seymore may initiate a habeas corpus action under 28 U.S.C. § 2254 to
challenge the validity of his state court convictions or sentences. However, Mr. Seymore
is reminded that he has already filed one § 2254 Application in this Court, challenging
his conviction and sentence in Denver District Court No. 03CR5034. See Christable
Seymore v. Denver County Jail, et al., Civil Action No. 15-cv-00024-GPG. That action
was dismissed with prejudice as time-barred. (Id.). Applicant may not file a successive
§ 2254 petition challenging the same state court conviction unless he receives
authorization from the United States Court of Appeals for the Tenth Circuit allowing this
Court to consider a successive petition. See 28 U.S.C. § 2244(b)(3)(A); In re Cline, 531
F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Furthermore, if Applicant initiates a new
habeas corpus action (that is not successive), he must comply with the AEDPA oneyear limitation period set forth in 28 U.S.C. § 2244(d), and must first exhaust available
state court remedies. See 28 U.S.C. § 2254(b). Accordingly, it is
ORDERED that the Complaint filed by Plaintiff, Christable E. Seymore, and this
action, are DISMISSED WITHOUT PREJUDICE pursuant to the rule of Heck. It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Seymore files a notice of appeal he must also pay
the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the
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United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
DATED June 16, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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