Richardson v. Ford

Filing 8

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Travis Richardson. It is the recommendation of the Magistrate Judge that the plaintiff's action be dismissed as frivolous and for failure to state a claim upon which relief may be gran ted within the meaning of 28 U.S.C. § 1915(e), with prejudice to its being asserted again until the conditions set forth in Heck v. Humphrey, supra, are met. See, e.g., Johnson v. McElveen, 101 F.3d 423 (5th Cir. 1997). Objections to R&R due by 4/30/2009. Signed by Magistrate Judge Christine Noland on 4/16/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

TRAVIS RICHARDSON (#450603) VERSUS CCR KIMBERLY W. FORD NOTICE

CIVIL ACTION

NO. 09-0183-RET-CN

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten (10) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 10 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Signed in chambers in Baton Rouge, Louisiana, April 16, 2009.

MAGISTRATE JUDGE CHRISTINE NOLAND

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA TRAVIS RICHARDSON (#450603) VERSUS CCR KIMBERLY W. FORD NO. 09-0183-RET-CN CIVIL ACTION

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION The pro se plaintiff, an inmate confined at David Wade Correctional Center, Homer, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Court Reporter Kimberly W. Ford of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, alleging that the defendant violated the plaintiff's constitutional r i ghts on February 3, 2005, when she transcribed the plaintiff's

sentencing proceedings and incorrectly noted that he was represented by counsel at that time whereas he contends that he was not so represented. The plaintiff prays for monetary damages. Pursuant to 28 U.S.C. § 1915(e), this Court shall dismiss an action brought in forma pauperis if satisfied that the action is frivolous, malicious or fails to state a claim upon which relief may be granted. Cf., Green v. McKaskle, 788 F.2d 1116 (5th Cir. 1986). An in forma

pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S.

25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), citing Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995). A § 1915(e) dismissal may be made at any

time, before or after service of process, and before or after an answer is filed. Green v. McKaskle, supra. In addition, 28 U.S.C. § 1915A

provides

that

a

Court

shall

review,

as

soon

as

practicable

after

docketing, a newly filed complaint and shall dismiss same, or any portion thereof, if the Court determines that the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted". Without substantively addressing the plaintiff's claim, it appears to this Court that this claim must be dismissed as duplicative. In a

separate lawsuit filed by the plaintiff before this Court, Travis Jerod Richardson v. East Baton Rouge District Attorney's Office, et al., No. 06-0963-JVP-DLD (M.D. La.), the plaintiff raised essentially the same claim as is asserted herein and named as a defendant Kimberly Ford. Pursuant to Opinion and Judgment entered on March 29, 2007, that action was dismissed as legally frivolous. Specifically, the Court noted in

that case that the plaintiff sought relief which would effectively result in a conclusion that his criminal sentence was improper and in an inference that his confinement was unlawful. As such, his claim for

monetary damages was subject to dismissal pursuant to the rule set forth in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994) (holding that, in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff most show 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.). As in the previous case, the plaintiff has not shown the Court that his conviction or sentence has been overturned or invalidated in a separate proceeding. Therefore, the plaintiff's claim is not cognizable Because Heck dictates that a cause of action

under § 1983 at this time.

seeking monetary damages under § 1983 for an allegedly unconstitutional imprisonment does not accrue until the conviction has been invalidated, the § 1983 Complaint should be dismissed. See Stephenson v. Reno, 28

F.3d 26 (5th Cir. 1994); Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994; Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994). RECOMMENDATION It is the recommendation of the Magistrate Judge that the

plaintiff's action be dismissed as frivolous and for failure to state a claim upon which relief may be granted within the meaning of 28 U.S.C. § 1915(e), with prejudice to its being asserted again until the

conditions set forth in Heck v. Humphrey, supra, are met. Johnson v. McElveen, 101 F.3d 423 (5th Cir. 1997).1

See, e.g.,

Signed in chambers in Baton Rouge, Louisiana, April 16, 2009.

MAGISTRATE JUDGE CHRISTINE NOLAND

Note that 28 U.S.C. § 1915(g) provides that, "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."

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