Washington v. Webster Parish et al

Filing 5

REPORT AND RECOMMENDATION re 1 Complaint filed by Elvis L Washington: IT IS RECOMMENDED that Plaintiff's civil rights complaint be dismissed with prejudice as frivolous under 28 U.S.C. 1915(3) until such time as the Heck conditions are met. Objections to R&R due by 7/9/2009. Signed by Magistrate Judge Mark Hornsby on 6/19/09. (crt,Cassanova, M) Modified on 6/19/2009 to correct clerical error of inaccurate reason for recommendation of dismissal. (Cassanova, M).

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UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R E V E PO R T DIVISION E L V IS WASHINGTON VERSUS J . SCHUYLER MARVIN C I V I L ACTION NO. 09-856-P J U D GE HICKS M A G I S T R A T E JUDGE HORNSBY REPORT AND RECOMMENDATION In accordance with the standing order of this Court, this matter was referred to the u n d e r s ig n e d Magistrate Judge for review, report and recommendation. S T A T E M E N T OF CLAIM Befo re the Court is a civil rights complaint filed in forma pauperis by pro se plaintiff Elvis Washington ("Plaintiff"), pursuant to 42 U.S.C. 1983. This complaint was received a n d filed in this Court on May 22, 2009. Plaintiff is incarcerated at the Richland Parish D e t e n t i o n Center in Rayville, Louisiana. He names Webster Parish District Attorney J. Schuyler Marvin as defendant. Plaintiff claims that on June 28, 2006, violations of his constitutional rights were c o n f i r m e d . He claims that on July 26, 1996, he was arrested for possession of cocaine with i n t e n t to distribute. He claims that after he was arraigned, he was offered a five year s e n t e n c e to plead guilty to possession of cocaine. P l a i n ti f f claims that after a trial, he was found guilty as charged. He claims that on M a y 11, 1998, he was sentence to 30 years imprisonment. He claims that on May 5, 2000, t h e District Attorney filed a habitual offender bill because he elected to go to trial. He claims t h a t on July 10, 2000, he was adjudicated a multiple offender and sentenced to 33 years impris onm ent. Plaintiff claims he was punished because he is black and elected to go to trial. As relief, Plaintiff seeks compensatory and punitive damages. For the following reasons, Plaintiff's civil rights complaint should be dismissed as f r i v o lo u s until the Heck conditions have been met. LAW AND ANALYSIS P l a in tiff is seeking compensatory and punitive damages from Defendant for an alleged u n c o n s t it u t io n a l conviction. The United States Supreme Court held that in order to recover mon etary damages for an allegedly unconstitutional conviction, or for "harm caused by a c t io n s whose unlawfulness would render a conviction or sentence invalid," a prisoner must s h o w that the conviction or sentence has been "reversed on direct appeal, expunged by e x e c u t iv e order, declared invalid by a state tribunal authorized to made such determination, o r called into question by a federal court's issuance of a writ of habeas." Heck v. Humphrey, 5 1 2 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Heck involved a civil rights claim b r o u g h t by a state prisoner. The Court dismissed the Section 1983 suit until plaintiff could dem ons trate that his conviction or sentence had been invalidated. When a claim comes within the parameters of the Heck teachings, it is not cognizable u n d e r 42 U.S.C. 1983 so long as the validity of the conviction has not been called into q u e s t io n as defined therein, which requires dismissal of claims not meeting its preconditions for suit. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). Page 2 of 4 P l a i n ti f f is seeking compensatory and punitive damages for civil rights violations u n d e r Section 1983; therefore, he must prove that his conviction or sentence has been i n v a l id a t e d . He has not met this precondition and his complaint must be dismissed until such t im e that he can demonstrate that his conviction or sentence has been invalidated or that the prosecution has been terminated in his favor. C O N C L U S IO N B e c a u s e Plaintiff filed this proceeding in forma pauperis ("IFP"), if this Court finds Pl ain tif f's complaint to be frivolous, it may dismiss the complaint as such at any time, before o r after service of process, and before or after answers have been filed. See 28 U.S.C. 1915(e); Green v. M cK askle , 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766 F . 2 d 179, 181 (5th Cir. 1985). District courts are vested with extremely broad discretion in m a k i n g a determination of whether an IFP proceeding is frivolous and may dismiss a claim a s frivolous if the IFP complaint lacks an arguable basis either in law or in fact. See Hicks v . Garner, 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993); Neitzke v . Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989). A cc or di ng ly; I T IS RECOMMENDED that Plaintiff's civil rights complaint be DISMISSED W I T H PREJUDICE as frivolous under 28 U.S.C. 1915(e) until such time as the Heck cond itions are met. Page 3 of 4 O B J E C T IO N S U n d e r the provisions of 28 U.S.C. 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this Report a n d Recommendation to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objection within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n s set forth above, within ten (10) days after being served with a copy shall b a r that party, except upon grounds of plain error, from attacking, on appeal, the proposed f a c t u a l findings and legal conclusions that were accepted by the district court and that were n o t objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir . 1996) (en banc). THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 19 th day o f June, 2009. Page 4 of 4

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