Smith v. Forester et al
Filing
8
MEMORANDUM OPINION & ORDER: 1) 1 Complaint is DISMISSED WITHOUT PREJUDICE. 2) Court will enter an appropriate judgment. 3) Matter is STRICKEN from the active docket. Signed by Judge Joseph M. Hood on 6/7/2013.(SCD)cc: COR,Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TICO JACQUES SMITH,
)
)
Plaintiff,
)
)
V.
)
)
JUDGE KARL S. FORESTER, et al., )
)
Defendants.
)
****
****
Civil No. 13-CV-32-JMH
MEMORANDUM OPINION
AND ORDER
****
****
Tico Jacques Smith is an inmate confined at the United States
Penitentiary
-
Hazelton
in
Bruceton
Mills,
West
Virginia.
Proceeding without an attorney, Smith has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 and under the doctrine
announced in Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971).
[R. 1]
The Court has granted Smith’s motion to
pay the filing fee in installments by prior order.
The
Court
must
conduct
a
preliminary
[R. 7]
review
of
Smith’s
complaint because he has been granted permission to pay the filing
fee
in
installments
government officials.
and
because
he
asserts
claims
28 U.S.C. §§ 1915(e)(2), 1915A.
against
A district
court must dismiss any claim that is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The
Court evaluates Smith’s complaint under a more lenient standard
because he is not represented by an attorney.
Erickson v. Pardus,
551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th
Cir. 2003).
At this stage, the Court accepts the plaintiff’s
factual allegations as true, and his legal claims are liberally
construed in his favor.
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007).
Smith alleges that in the early morning hours of February 5,
2010, Lexington police officer Gary Thurman pulled over a vehicle
in which Smith was a passenger.
Thurman was later joined by
Lexington police officers Stacey Shannon and Jason Rothman.
Thurman advised the driver of the vehicle that Smith had recently
been arrested on drug charges.
Thurman then handcuffed Smith, and
allegedly stated that he pulled over the vehicle because “at so and
so time at night you were driving a nigger car, you have two
niggers in your car.”
[R 1., p. 3]
Smith was later indicted by a federal grand jury of being a
felon
in
possession
§ 922(g)(1).
of
a
firearm
in
violation
of
18
U.S.C.
The Assistant United States Attorney assigned to
prosecute the case was Brandon Marshall; United States District
Judge Karl S. Forester was the presiding judge in the case.
United
States v. Smith, No. 5:10-cr-56-KSF-1 (E.D. Ky. 2010).
Smith alleges that on July 23, 2010, Marshall and Judge
Forester were informed that the traffic stop was arbitrary and
based solely on Smith’s race.
[R. 1, p. 3]
In a July 27, 2010,
supplemental memorandum filed in support of Smith’s motion to
suppress evidence seized at the traffic stop, his counsel asserted
that the driver stated that “[w]hen she questioned the officer why
he wanted to search her vehicle, ... Officer Thurman stated it was
because two white women were driving around with black men at night
in a black neighborhood,” and argued that this was not a legallysufficient ground to authorize the stop. [R. 24 therein, pp. 4, 8]
After the Court denied the motion to suppress, Smith agreed to
plead guilty to the § 922(g) charge, but expressly reserved his
right to challenge the denial of his suppression motion on appeal.
[R. 25, 36 therein] On appeal Smith again challenged the vehicular
stop as impermissibly based solely upon his race, an argument the
Sixth Circuit rejected.
[R. 54 therein, p. 2]
On June 18, 2012,
the Supreme Court denied Smith’s petition for a writ of certiorari.
[R. 57 therein]
Smith has not yet filed a motion for relief from
his conviction or sentence pursuant to 28 U.S.C. § 2255, and the
one-year period within which to do so under 28 U.S.C. § 2255(f) has
not yet passed.
Smith claims that Lexington police officers Thurman, Rothman,
and Shannon “subjected plaintiff to an unreasonable search and
subsequent
arrest”;
that
“Thurman’s
motivation
[to
stop
the
vehicle] was based on racial discrimination ...”; and that AUSA
Marshall and Judge Forester conspired with the officers to conceal
such discrimination and to violate his civil rights. [R. 1, pp. 45]
Smith sues each of the defendants in his or her individual and
official capacity for compensatory and punitive damages.
The Court will dismiss Smith’s complaint without prejudice as
barred under
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Heck,
the Supreme Court explained that “a civil rights action for damages
that would imply the invalidity of a conviction may not be brought
until the subject conviction has been overturned.”
Hunt v.
Michigan, 482 F. App’x 20, 21 (6th Cir. 2012); Matheney v. City of
Cookeville, Tenn., 461 F. App’x 427, 430 (6th Cir. 2012).
Smith
asserts the same claim of impermissible racial profiling that he
asserted,
without
success,
during
his
criminal
proceedings.
Because the successful assertion of that claim in this civil
proceeding
would
necessarily
undermine
the
validity
of
the
decisions of the district court and the Sixth Circuit upholding his
criminal conviction, it may not be asserted unless and until Smith
successfully challenges his criminal conviction through postconviction proceedings or through habeas corpus.
Wallace v. Kato,
549 U.S. 384, 395 n. 5(2007) (“a Fourth Amendment claim can
necessarily imply the invalidity of a conviction, and ... if it
does it must, under Heck, be dismissed.”).
Accordingly, IT IS ORDERED that:
1.
Smith’s complaint [R. 1] is DISMISSED WITHOUT PREJUDICE.
2.
The Court will enter an appropriate judgment.
3.
This matter is STRICKEN from the active docket of the
Court.
This the 7th day of June, 2013.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?