Johansson v. Johnson

Filing 16

Memorandum Opinion and Order dismissing case with prejudice for failure to state a claim until such time as the convictions are invalidated. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). A separate final judgment shall be entered. Signed by District Judge Keith Starrett on December 16, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

JOHNNY RUSSELL JOHANSSON, # 167136
VERSUS

PLAINTIFF
CIVIL ACTION NO. 5:14cv80-KS-MTP

FORREST AL JOHNSON and DAVID
BLALOCK, SR., DECEASED

DEFENDANTS

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court sua sponte. Pro se Plaintiff Johnny Russell Johansson is
incarcerated with the Mississippi Department of Corrections and brings this action for damages,
challenging his convictions for child fondling, probation revocation, and failure to register as a
sex offender. The Court has considered and liberally construed the pleadings. As set forth
below, this case is dismissed.
BACKGROUND
According to Johansson, he is currently confined at the Central Mississippi Correctional
Center. He was originally convicted on April 4, 2011, when he pled guilty to child fondling, in
the Adams County Circuit Court. He was represented by David Blalock, Sr., now deceased. The
trial judge was Forrest Al Johnson. Judge Johnson sentenced Johansson to a total of eleven
years for that charge, some of which was to be served on probation. On November 22, 2013, he
was indicted for failure to register as a sex offender. For that, he contends he was convicted, and
his probation was revoked.
Johansson filed this action under 42 U.S.C. § 1983 and state law, contending that his
original guilty plea was unknowing. He claims that he is deaf and illiterate and did not have an
interpreter to explain the plea proceedings. He sues Judge Johnson, claiming that he should have

provided an interpreter. Johansson also brings claims against his former attorney, claiming that
he forged Johansson’s signature on the guilty plea and falsely represented to the court that he
was pleading guilty. Johansson contends that he is innocent and would not have pled guilty in
the first place. Because he contends his original conviction is illegal, he likewise maintains that
he should not have been convicted of failure to register or for a probation violation. As relief, he
seeks damages. He maintains a separate habeas action in Johansson v. King, cause number
5:14cv96-DCB-MTP.
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's factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n an
action proceeding under [28 U.S.C. § 1915, 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 Johansson to proceed in
forma pauperis in this action. His Complaint is subject to sua sponte dismissal under § 1915.

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A civil action that challenges the fact or duration of a state conviction or 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 “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 habeas
corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Where success on the claim “will
not necessarily imply the invalidity of confinement or shorten its duration,” then the action may
proceed. Wilkinson, 544 U.S. at 82.
Johansson challenges the fact of all three of his convictions, claiming that he was
innocent of child fondling and that his guilty plea to that charge was unknowing. Success on any
one of his claims will necessarily invalidate all three of his state convictions. Therefore, the
claims may only proceed if he proves the convictions have already been invalidated. He admits
that they still stand.
Because the convictions have not yet been invalidated, Johansson is precluded by Heck
from challenging them in this civil action at this time. The claims are dismissed with prejudice
for failure to state a claim, until such time as he successfully has the convictions 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 § 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

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such time as the convictions are invalidated. This dismissal counts as a strike pursuant to 28
U.S.C. § 1915(g). A separate final judgment shall issue pursuant to Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED, this the 16th day of December, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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