Franklin v. Marion County Circuit Court et al

Filing 9

Memorandum Opinion and Order re: 1 Complaint, 2 Memorandum in Support. This case should be and is hereby dismissed with prejudice for failure to state a claim until such time as the State Court conviction is invalidated. A separate final judgment shall be entered herein. Signed by District Judge Keith Starrett on 12/13/11 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DAVID FRANKLIN, # 81122
VERSUS

PLAINTIFF
CIVIL ACTION NO. 2:11CV183-KS-MTP

MARION COUNTY CIRCUIT COURT,
BUCKLEY HALL, and JOE TURNEY

DEFENDANTS

MEMORANDUM OPINION AND ORDER OF DISMISSAL
BEFORE THE COURT are pro se Plaintiff David Franklin’s Complaint [1] and Brief [2].
He is incarcerated with the Mississippi Department of Corrections and seeks damages for his
alleged illegal conviction and sentence. The Court has considered and liberally construed the
pleadings. The case is dismissed.
FACTS AND PROCEDURAL HISTORY
On September 7, 2011, Franklin filed the instant Section 1983 action against Defendants
Marion County Circuit Court, Sheriff Buckley Hall, and Joe Turney, Franklin’s criminal defense
counsel. He claims he was illegally convicted of and sentenced for armed robbery. He seeks
damages from each Defendant as well has a reversal of his conviction. The Court allowed
Franklin to proceed in forma pauperis.
On September 12, 2011, Franklin filed a Section 2254 habeas action before the
undersigned, styled Franklin v. Banks, No. 2:11cv185-KS-MTP. The habeas action challenges
the same conviction on the basis raised in the instant action. In both cases, Franklin argues he is
innocent. The Court granted Franklin leave to pursue his habeas action in forma pauperis on
October 28, and process was issued. The habeas action is still pending.

DISCUSSION
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma
pauperis in this Court. One of the provisions reads, “the court shall dismiss the case at any time
if the court determines that . . . the action . . . –(i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “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' factual allegations and dismiss those claims whose
s
factual contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an
action proceeding under Section 1915(d), [a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they have not been addressed or raised.”
Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before service of process or before the filing
of the answer.” Id. The Court has permitted Franklin to proceed in forma pauperis in this
action. His Complaint is subject to sua sponte dismissal under Section 1915.
Franklin argues his conviction and sentence for armed robbery are illegal because he is
innocent. A Section 1983 claim that challenges the fact or duration of a state sentence “is barred
(absent prior invalidation) . . . if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). In
such a case, “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 a determination, or called into question by a federal court’s issuance of a writ of
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habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Where success on the § 1983
claim “will not necessarily imply the invalidity of confinement or shorten its duration,” then the
action may proceed. Wilkinson, 544 U.S. at 82.
Success on Franklin’s claim of actual innocence will necessarily invalidate his State court
conviction. Therefore, the claim may only proceed if he proves the conviction has already been
invalidated. As explained above, he filed a contemporaneous habeas petition before the
undersigned challenging the same conviction. That action is still pending. Therefore, it is clear
that he has not yet been granted habeas relief in this matter.
Because the conviction has not yet been invalidated, Franklin is precluded by Heck from
challenging it in this Section 1983 civil action at this time. The claim under Section 1983 is
dismissed with prejudice for failure to state a claim, until such time as he successfully has the
State court conviction invalidated, via appeal, post conviction relief, habeas, or otherwise.
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). This dismissal counts as a strike under
28 U.S.C. § 1915(g). Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
this case should be and is hereby DISMISSED WITH PREJUDICE for failure to state a claim
until such time as the State court conviction is invalidated. A separate final judgment shall issue
pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED, this the 13th day of December, 2011.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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