Gray v. Raymond

Filing 26

STAY ORDER AND REASONS: For all of the foregoing reasons, IT IS ORDERED that the captioned matter is hereby STAYED and CLOSED for all administrative and statistical purposes. Plaintiff Brandon Percell Gray is hereby specifically instructed that, cont rary to the discussion with the court during the September 3, 2015 conference, this case is not being dismissed at this time. Instead, Gray's civil case in this court is merely being suspended pending the conclusion of the criminal charges again st him. Accordingly, IT IS FURTHER ORDERED that Gray may request that this matter be reopened for furtherproceedings, but only when the pending charges against him of resisting arrest,aggravated battery of a police officer, aggravated assault of a po lice officer and aggravated flight from a police officer are dismissed or otherwise set aside, by notifying this court of his acquittal or the dismissal of these charges in writing. IT IS FURTHER ORDERED that, if Gray is convicted of any of the pendi ng charges of resisting arrest, aggravated battery of a police officer, aggravated assault of a police officer and aggravated flight from a police officer, defense counsel must file a motion to dismiss this case with prejudice to being asserted again until the Heck conditions are met, as provided in Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/14/2015.(my)(NEF:SSV)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRANDON PERCELL GRAY SR.

CIVIL ACTION

VERSUS

NO. 15-1463

TED RAYMOND ET AL.

SECTION “R” (2)

STAY ORDER AND REASONS
Plaintiff, Brandon Percell Gray, Sr., is a prisoner currently incarcerated in the
Jefferson Parish Correctional Center (“JPCC”) in Gretna, Louisiana. He filed this
complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 against Jefferson
Parish Sheriff’s Deputy Ted Raymond, the Jefferson Parish Sheriff’s Office and Jefferson
Parish Sheriff Newell Normand. Gray alleges that he was subjected to unconstitutionally
excessive force when he was shot during his arrest on October 9, 2014, following an
armed bank robbery and automobile flight from responding police, which ultimately
resulted in various criminal charges against Gray. He seeks $2 million in monetary
relief, criminal charges against the deputy who shot him, and the officer’s discharge from
employment by the sheriff’s office. Record Doc. No. 1 (Complaint at ¶ V).
On September 3, 2015, I conducted a telephone conference in this matter.
Participating were plaintiff pro se and Daniel Martiny, counsel for defendants. Plaintiff
was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), and its progeny.

THE RECORD
In his complaint, Gray alleged that “[o]n Oct[ober] 9, 2014, although I posed no
threat of life or limb to Officer Ted Raymond of the J.P.S.O. [Jefferson Parish Sheriff’s
Office], while I was unarmed, . . . Raymond fired multiple shots at me while running for
my life, striking me twice in my right leg from behind.” Record Doc. No. 1 (Complaint
at p. 4, ¶ IV).
During his testimony, Gray stated that he is currently incarcerated in the JPCC
awaiting trial on five counts of armed bank robbery, all of which are related to the
robbery of the Iberia Bank on Barataria Boulevard in Marrero, Louisiana, on October 9,
2014, the same day that he was shot by Deputy Raymond. He stated that he is also
awaiting trial on additional charges stemming from the subject Iberia Bank robbery and
police shooting, including resisting arrest, aggravated battery of a police officer,
aggravated assault of a police officer and aggravated flight from a police officer. The
criminal charges against Gray include allegations that, after committing the bank robbery
using a handgun, Gray fled the scene in a vehicle that was spotted shortly after the
robbery by Deputy Raymond; that a vehicular chase ensued, ending when Gray crashed
his vehicle into a home; that Gray exited the vehicle after the crash and brandished a

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handgun that he pointed at Deputy Raymond, who then opened fire and struck Gray in
the leg; and that Gray then attempted to flee again on foot, but was apprehended.1
Gray testified that he is awaiting trial currently scheduled for November 9, 2015,
on all of these charges. Thus, although one of his written submissions to this court in the
instant case stated that “[t]he initial charges I was arrested on were dropped,” Record
Doc. No. 22 at p. 2, his testimony established that none of the resisting arrest, aggravated
battery of a police officer, aggravated assault of a police officer and aggravated flight
from a police officer charges have been dismissed or otherwise set aside at this time.
Gray confirmed during his testimony that all of the claims he asserts in this case are
related to the Iberia Bank robbery and its aftermath, including his shooting by defendant
Deputy Raymond, on October 9, 2014.
Gray acknowledged that he is the same Brandon Gray whose armed robbery
conviction in connection with a car theft and 15-year prison sentence were the subject
of a separate matter filed in this court. Brandon Gray v. Mickey Hubert, C.A. No. 011984. He testified, however, that he had completed his prison sentence and had satisfied
all conditions of his parole in that separate matter, thus establishing that he was not on
parole at the time of the current bank robbery related charges, that he is not currently

1

A newspaper account of the October 9, 2014, incident giving rise to these charges against Gray is located
at H. Freund, “JPSO Deputy Shoots Marrero Bank Robbery Suspect After Chase,” The Times-Picayune,
www.nola.com/crime/index.ss/2014/10/suspect_in_marrero (Oct. 9, 2014, updated Feb. 24, 2015).

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incarcerated for any parole violation, and that his current incarceration status is pretrial
detainee.
Gray stated that he was not threatening the deputy’s life and did not have a gun
in his hand at the time he was shot by the deputy, but instead was trying to turn himself
in on the bank robbery charges. “I was hunted and shot like an animal. I didn’t do
anything to warrant that,” he said. He described the criminal charges currently pending
against him as “bogus,” and he offered an alleged statement given by Deputy Raymond
to a ranking officer as evidence that will support his eventual acquittal. “I’m almost
certain I’ll be exonerated of all the [resisting arrest, flight and officer assault and battery]
charges.”
ANALYSIS
I.

STANDARDS OF REVIEW
A prisoner’s pro se complaint for alleged civil rights violations must be screened

by the court as soon as practicable after docketing, regardless whether it has also been
filed in forma pauperis. 28 U.S.C. § 1915A(a); Thompson v. Hicks, 213 F. App’x 939,
942 (11th Cir. 2007); Lewis v. Estes, 242 F.3d 375, 2000 WL 1673382, at *1 (8th Cir.
2006); Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004); Martin v. Scott, 156 F.3d
578, 579-80 (5th Cir. 1998); Lewis v. Sec’y, DOC, No. 2:10-CV-547-FTM-29, 2013
WL 5288989, at *2 (M.D. Fla. Sept. 19, 2013), aff’d, 589 F. App’x 950 (11th Cir. 2014).

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Such complaints by prisoners must be dismissed upon review if they are frivolous or fail
to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Lewis, 589
F. App’x at 952; Thompson, 213 F. App’x at 942; Shakur, 391 F.3d at 113; Carr v.
Dvorin, 171 F.3d 115, 116 (2d Cir. 1999).
“A federal court may dismiss a claim in forma pauperis ‘if satisfied that the action
is frivolous or malicious.’” Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)
(quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as
amended). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994). The law “‘accords judges not only the authority to dismiss a claim based on
an indisputably meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual contentions are
clearly baseless.’” Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th
Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
The purpose of a Spears hearing is to dig beneath the conclusional allegations of
a pro se complaint, to ascertain exactly what the prisoner alleges occurred and the legal
basis of the claims. Spears, 766 F.2d at 180. “[T]he Spears procedure affords the
plaintiff an opportunity to verbalize his complaints, in a manner of communication more
comfortable to many prisoners.” Davis, 157 F.3d at 1005. The information elicited at

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such an evidentiary hearing is in the nature of an amended complaint or a more definite
statement under Fed. R. Civ. P. 12(e). Wilson v. Barrientos, 926 F.2d 480, 481 (5th Cir.
1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). “Upon development of the
actual nature of the complaint, it may also appear that no justiciable basis for a federal
claim exists.” Spears, 766 F.2d at 182.
After a Spears hearing, the complaint may be dismissed as legally frivolous if it
lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995);
Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or “as factually frivolous only if the
facts alleged are ‘clearly baseless,’ . . . [or] when the facts alleged rise to the level of the
irrational or wholly incredible.” Id. at 270. “‘A complaint lacks an arguable basis in law
if it is based on an indisputably meritless legal theory, such as if the complaint alleges
the violation of a legal interest which clearly does not exist.’” Davis, 157 F.3d at 1005
(quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
In this case, the question of whether Gray’s civil rights claim may proceed or is
barred or otherwise non-existent under Supreme Court precedent depends upon the
outcome of the criminal charges that remain pending against him. In Heck v. Humphrey,
512 U.S. 477 (1994), the Supreme Court held that a civil action for alleged civil rights
violations that attacks the validity of state criminal charges or confinement, which have

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not been reversed, expunged, invalidated, or called into question by a federal court’s
issuance of a writ of habeas corpus, is not cognizable under Section 1983.
[T]o recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must
prove 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 determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.
Id. at 486-87 (emphasis in original) (footnote omitted). Although the Supreme Court’s
decision in Heck concerned a civil action for monetary damages, the United States Court
of Appeals for the Fifth Circuit has also applied Heck in cases in which the plaintiff also
seeks injunctive relief. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc)
(citing Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584 (1997)).
As the United States Court of Appeals for the Fifth Circuit has found in a similar
case applying Heck, plaintiff's Section 1983 excessive force claim in the instant case
necessarily implies the invalidity of his present confinement on the pending criminal
charges against him for resisting arrest, aggravated battery of a police officer, aggravated

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assault of a police officer and aggravated flight from a police officer. In a case
presenting a claim similar to the one asserted by Gray in this case,
[plaintiff] was arrested and convicted of battery of an officer. In Louisiana,
self-defense is a justification defense to the crime of battery of an officer.
To make out a justification defense, the criminal defendant charged with
battery of an officer must show that his use of force against an officer was
both reasonable and necessary to prevent a forcible offense against himself.
Because self-defense is a justification defense to the crime of battery of an
officer, [plaintiff's] claim that [the officers] . . . used excessive force while
apprehending him, if proved, necessarily would imply the invalidity of his
arrest and conviction for battery of an officer. This is true because the
question whether the police applied reasonable force in arresting him
depends in part on the degree of his resistance, which in turn will place in
issue whether his resistance (the basis of his conviction for assaulting a
police officer) was justified, which, if it were, necessarily undermines that
conviction.
Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996) (citations omitted) (emphasis
added). The instant case is similar and Gray’s claims are clearly connected to the validity
of his confinement for resisting arrest by force. Heck, 512 U.S. at 479; Arnold v. Town
of Slaughter, No. 03-30941, 2004 WL 1336637, at *3-4 (5th Cir. June 14, 2004); Hainze
v. Richards, 207 F.3d 795, 799 (5th Cir. 2000); Boyd v. Biggers, 31 F.3d 279, 283 (5th
Cir. 1994).
However, while Gray’s confinement has not been set aside, Gray has not yet been
convicted. On one hand, Gray’s Section 1983 claim of excessive force in this court must
fail if he is convicted because it would necessarily impugn the validity of any conviction
and sentence for resisting arrest, aggravated battery of a police officer, aggravated assault
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of a police officer and aggravated flight from a police officer. On the other hand, the
case may proceed if Gray is acquitted or these charges against him are dismissed.
Under these circumstances, courts in the Fifth Circuit, citing Supreme Court
precedent, have clearly held that a stay of the civil case – rather than its dismissal –
pending resolution of the related criminal charges is the appropriate course of action.
DeLeon v. City of Corpus Christi, 488 F.3d 649, 655 (5th Cir. 2007)(citing Wallace v.
Kato, 549nU.S. 384, 127 S.Ct. 1091, 1098 (2007)); McCollom v. City of Kemp, Texas,
C.A. No. 3:14-CV-1488-B, 20214 WL 6085289 (N.D. Tx. Nov. 14, 2014). A magistrate
judge has authority to issue such a stay order, where the order is not dispositive, merely
suspends the proceedings and does not result in an absolute denial of ultimate relief.
Virgin Islands Water and Power Authority v. General Electric Int’l Inc., 561 Fed. Appx.
131 (3d Cir. 2014); Securities and Exchange Comm’n v. CMKM Diamonds, Inc., 729
F.3d 1248, 1260 (9th Cir. 2013); Powershare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st
Cir. 2010).
For all of the foregoing reasons, IT IS ORDERED that the captioned matter is
hereby STAYED and CLOSED for all administrative and statistical purposes.
Plaintiff Brandon Percell Gray is hereby specifically instructed that, contrary to
the discussion with the court during the September 3, 2015 conference, this case is not
being dismissed at this time. Instead, Gray’s civil case in this court is merely being

9

suspended pending the conclusion of the criminal charges against him. Accordingly, IT
IS FURTHER ORDERED that Gray may request that this matter be reopened for further
proceedings, but only when the pending charges against him of resisting arrest,
aggravated battery of a police officer, aggravated assault of a police officer and
aggravated flight from a police officer are dismissed or otherwise set aside, by notifying
this court of his acquittal or the dismissal of these charges in writing.
IT IS FURTHER ORDERED that, if Gray is convicted of any of the pending
charges of resisting arrest, aggravated battery of a police officer, aggravated assault of
a police officer and aggravated flight from a police officer, defense counsel must file a
motion to dismiss this case with prejudice to being asserted again until the Heck
conditions are met, as provided in Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.
1996).

14th
New Orleans, Louisiana, this _________ day of September, 2015.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

CLERK TO NOTIFY:
HON. SARAH S. VANCE

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