Henry v. State of Louisiana

Filing 5

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Rufus Henry. It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (iii). Objections to R&R due by 12/28/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 12/11/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

RUFUS HENRY (#74334) VERSUS STATE OF LOUISIANA CIVIL ACTION NUMBER 09-980-RET-SCR

NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within fourteen 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 accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, December 11, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA RUFUS HENRY (#74334) VERSUS STATE OF LOUISIANA CIVIL ACTION NUMBER 09-980-RET-SCR

MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate confined at Louisiana State Penitentiary, Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against the State of Louisiana. the State of Louisiana. Plaintiff sued only

Plaintiff alleged that because he was

improperly charged with second degree murder by the St. Landry Parish District Attorney rather than by a grand jury indictment, the subsequent prosecution (and apparent conviction) violated state law. Plaintiff seeks a award of money damages. Plaintiff's

complaint does not allege a violation of any federal law or constitutional right. 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, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831-32 (1989); Hicks v. Garner, 69 F.3d 22, 24 (5th Cir. 1995). A court may

dismiss a claim as factually frivolous only if the facts are clearly baseless, a category encompassing allegations that are

fanciful, fantastic, and delusional. 112 S.Ct. at 1733.

Denton, 504 U.S. at 33-34,

Pleaded facts which are merely improbable or

strange, however, are not frivolous for section 1915(d) purposes. Id.; Ancar v. SARA Plasma, Inc., 964 1992). F.2d 465, 468 (5th Cir.

Dismissal under 28 U.S.C. §1915(d) may be made at any time

before or after service of process and before or after an answer is filed. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). the Eleventh Amendment to the United States

Under

Constitution, an unconsenting state is immune from suits seeking monetary damages brought in federal courts by her own citizens as well as citizens of another state. 659, 94 S.Ct. 1347 (1974). Edelman v. Jordan, 415 U.S.

Although Congress has the power to

abrogate this immunity through the Fourteenth Amendment, it has not done so as to claims for deprivation of civil rights under color of state law. See, Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666

(1976); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139 (1979); Edelman v. Jordan, supra. Thus, absent consent by the state or

congressional action, a state is immune from a suit for damages. Louisiana has not waived her sovereign immunity under the Eleventh Amendment, and is immune from suit in this action. Even if the plaintiff were to amend his complaint to name the St. Landry Parish District Attorney as the defendant, his complaint would still be subject to dismissal. Plaintiff's claim would have

to initially be pursued through habeas corpus since he challenges 2

the validity of his conviction and the resolution of his claim may entitle him to immediate or early release. Serio v. Members of La.

State Bd. of Pardons, 821 F.2d 1112 (5th Cir. 1987); Clark v. Williams, 693 F.2d 381 (5th Cir. 1982). Additionally, unless the plaintiff can demonstrate that a state court or other authorized tribunal has determined that his constitutional rights were violated during his criminal trial, he has no damages claim cognizable under 42 U.S.C. § 1983. See, Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994) (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 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). Plaintiff's claim falls squarely within the Court's holding in Heck. Plaintiff's complaint calls into question the lawfulness of Even if the St. Landry Parish District Attorney

his confinement.

was the defendant, the plaintiff failed to show that he has successfully challenged his conviction, sentence or confinement in any other proceeding. Plaintiff did not allege and offered no

evidence showing that his conviction has been reversed, expunged 3

set aside by a state court, or called into question by a federal court's issuance of a writ of habeas corpus. Therefore, the

plaintiff's claim is not cognizable under § 1983 at this time against any defendant. Plaintiff's sole federal remedy to

challenge the fact or duration of his confinement is a writ of habeas corpus. (1973). Because Heck dictates that a cause of action seeking damages under § 1983 for an allegedly unconstitutional imprisonment does not accrue until the conviction has been invalidated, the § 1983 complaint should be dismissed with prejudice. Stephenson v. Reno, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827

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). Because it is clear that the plaintiff's claim has no arguable basis in fact or in law and the complaint is against a defendant who is entitled to immunity, the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed pursuant to 28 U.S.C.

§1915(e)(2)(B)(i) and (iii). Baton Rouge, Louisiana, December 11, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE 4