Wall v. Walker et al

Filing 18

MEMORANDUM OPINION re 17 Judgment,. Signed by District Judge Sharion Aycock on 4/18/13. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
JEROME WALL

PLAINTIFF

v.

No. 2:12CV207-A-A

DAVID WALKER, ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Jerome Wall, who
challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the
Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed
this suit. For the reasons set forth below, the instant case shall be dismissed for failure to state a
claim upon which relief could be granted.
Factual Allegations
Jerome Wall was convicted in 1996 in Panola County Circuit Court for possession of
marijuana and sentenced as a habitual offender to life imprisonment without the possibility of
parole. He claims in the present case that his attorney was ineffective in failing to challenge the
Tennessee convictions used to enhance his sentence under Mississippi’s habitual offender
statute. See MISS. CODE ANN. § 99-19-83. He believes that the convictions in Tennessee are not
valid because, under Tennessee law, the trial court was required to impose the sentences
consecutively, but instead imposed them concurrently. Thus, under Wall’s theory, he received a
lesser Tennessee sentence than he should have under the law. He claims that he has not been
able to present the court with this claim because the Inmate Legal Assistance Program has not
provided him with access to the authority in Tennessee for the last 26 years – and that he gained
such access only recently.

Three-Year Limitations Period
The instant case should be dismissed for several reasons, the first of which is the threeyear limitations period for § 1983 cases filed in Mississippi. A federal court borrows the forum
state’s general or residual personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249
(1989); Gartrell v. Gaylor, 981 F.2d 254 (5th Cir. 1993). In Mississippi, that statute is MISS.
CODE ANN. § 15-1-49, which allows a litigant only three years to file such an action, and the
statute begins to run “at the moment the plaintiff becomes aware he has suffered an injury or has
sufficient information to know he has been injured.” Russel v. Board of Trustees of Firemen,
etc., 968 F.2d 489 (5th Cir. 1992), cert. denied, 113 S. Ct. 1266 (1993) (citations omitted). Wall
had been incarcerated for 26 years when he filed the instant suit. It appears that he has known
about the issue at hand during that time. He has filed several cases, including a petition for a
writ of habeas corpus, in this court during his incarceration. Though he claims that he did not
have access to authority regarding Tennessee state law, he has had access to this court for
decades. He could easily have sought relief in this court to request access to the legal materials
he seeks, but he did not. Though dismissal under the statute of limitations is ordinarily an
affirmative defense to be raised by the defendants in a case, the court may address the issue sua
sponte when that defense if plain on the face of the pleadings. Carbe v. Lappin, 492 F.3d 325
(5th Cir. 2007). Given Wall’s allegations, he filed the instant suit 23 years beyond the filing
deadline. As such, the instant case should be dismissed as untimely filed.
Heck
The case must also be dismissed because, if successful, it would impugn his conviction.
The Supreme Court emphasized in Heck that there is no requirement of “exhaustion” of habeas

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corpus remedies in order to proceed on a claim under § 1983. Rather, a § 1983 damage claim
that calls into question the lawfulness of conviction or confinement or otherwise demonstrates
the invalidity of the conviction or confinement is not cognizable under § 1983 until such time as
a § 1983 plaintiff is able to
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.
Heck v. Humphrey, 114 S. Ct. at 2372; see also Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir.
1994). Only if the court finds that the plaintiff’s § 1983 suit, even if successful, “will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,” should the
§ 1983 action be allowed to proceed. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995).
In the case at hand, it is the court’s conclusion that plaintiff’s success in his claim for
damages against the defendants in this case would necessarily draw into question the validity of
his conviction or sentence. He alleges that his sentence of life without parole should be null and
void because the convictions used to enhance his sentence were unlawful. Therefore, the
plaintiff must “demonstrate that the conviction or sentence has already been invalidated,” Heck,
114 S. Ct. at 2372, in order for the § 1983 cause of action to accrue. Plaintiff has made no such
showing; therefore, this case will be dismissed for failure to state a claim upon which relief
could be granted under 28 U.S.C. § 1915(d). Nusku v. Williams, 490 U.S. 319, 326 (1989).

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The Plaintiff’s Motion for a Temporary Restraining Order
or Preliminary Injunction must Be Denied
In his motion for a temporary restraining order or preliminary injunction, Wall seeks
placement in a cell with better lighting and a better writing surface so he may more easily draft
legal documents for submission to the court. A party must prove four elements to be entitled to
preliminary injunctive relief: (1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury
to the movant outweighs any harm that may result from the injunction to the non-movant; and
(4) that the injunction will not disserve the public interest. DSC Communications Corp. v. DGI
Technologies, Inc., 81 F.3d 597, 600 (5th Cir. 1996); Rodriguez v. United States, 66 F.3d 95, 97
(5th Cir. 1995), cert. denied, 116 S. Ct. 1058, 134 L. Ed. 2d 202 (1996); Cherokee Pump &
Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994); Doe v. Duncanville
Independent School District, 994 F.2d 160, 163 (5th Cir. 1993); Plains Cotton Co-op Association
v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1259 (5th Cir.), cert. denied, 484 U.S. 821,
108 S. Ct. 80, 98 L. Ed. 2d 42 (1987); Canal Authority of Florida v. Callaway, 489 F.2d 567,
572 (5th Cir. 1974). A preliminary injunction is an extraordinary remedy. Cherokee Pump, 38
F.3d at 249. It is “not to be granted routinely, but only when the movant, by a clear showing,
carries [the] burden of persuasion.” Black Fire Fighters Association v. City of Dallas, 905 F.2d
63, 65 (5th Cir. 1990) (quoting Holland American Insurance Co. v. Succession of Roy, 777 F.2d
992, 997 (5th Cir. 1985)); Cherokee Pump, 38 F.3d at 249 (quoting Mississippi Power & Light v.
United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)) (“The decision to grant a
preliminary injunction is to be treated as the exception rather than the rule”).
The plaintiff is unable to demonstrate a substantial likelihood of success on the merits in
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light of his argument as framed in the instant motion. Though his complaint of inadequate
lighting and conditions for writing may state a claim, they do not constitute the extraordinary
circumstances necessary to warrant emergency injunctive relief. Accordingly, plaintiff fails to
demonstrate a substantial likelihood that he will prevail on his claim. The plaintiff’s motion for
a temporary restraining order or preliminary injunction will therefore be dismissed.
As a final note, the plaintiff claims that he should have been allowed to challenge the
validity of his Tennessee sentences because they were more lenient than they should have been.
As the plaintiff in that situation was helped, rather than harmed, he can show no damage from
the purported misapplication of Tennessee law. As such, even if he had challenged the
sentences, he could not have stated a valid claim for relief. The plaintiff’s claims must also be
dismissed for this reason.
In sum, all of the claims in the present case are without substantive merit, and this case
will be dismissed for failure to state a claim upon which relief could be granted. A final
judgment consistent with this memorandum opinion will issue today.
SO ORDERED, this the 18th day of April, 2013.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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