Russell v. Smith et al
ORDER directing that case be administratively closed. Signed by Magistrate Judge F. Keith Ball on 1/10/13 (dfk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EARNEST EARL RUSSELL
CIVIL ACTION NO. 3:11cv607-DPJ-FKB
ROBERT S. SMITH, et al.
Plaintiff is a pretrial detainee at the Hinds County Detention Center (HCDC) who is
being held on charges of aggravated assault and felon-in-possession. He brought this
action pursuant to § 1983 alleging claims of false arrest, false imprisonment, and
malicious prosecution. A Spears1 hearing was held on October 31, 2012, at which Plaintiff
and counsel for Defendants Derrick Jordan and S. Burke appeared.2 Having considered
Plaintiff’s complaint and his testimony at the hearing, the Court finds and rules as follows.
Plaintiff’s claim is essentially that he was wrongfully arrested and charged and is
being wrongfully prosecuted for the crimes for which he is now awaiting trial. A plaintiff
may not recover damages under § 1983 if a judgment in his favor would necessarily imply
the invalidity of an underlying criminal conviction or sentence, unless the conviction or
sentence “has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal . . . or called into question by a federal court’s issuance of a writ
of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). If the plaintiff cannot
show that the conviction has been invalidated, the complaint must be dismissed. Id.
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Defendant Robert S. Smith, who is pro se, failed to appear at the hearing.
However, if there has been no convicted, a court has the power to stay a § 1983 action
until the related criminal case has ended. Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
The Court concludes that in the present case a stay is appropriate. Accordingly, this
matter is hereby stayed, and the Clerk is directed to administratively close the file. If the
related criminal case ends in Plaintiff’s favor, he may at that time file a motion to reopen
So ordered, this the 10th day of January, 2013.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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