Hinton v. The State of Mississippi et al

Filing 41

ORDER finding as moot 32 Motion for Extension of Time to File Response/Reply re 30 REPORT AND RECOMMENDATIONS re 12 Amended Complaint filed by Henry Hinton, Jr. ; finding as moot 33 Motion for Extension of Time to File Response/Reply re 30 REPORT AND RECOMMENDATIONS re 12 Amended Complaint filed by Henry Hinton, Jr. ; denying as moot 36 Motion to Amend/Correct; denying as moot 36 Motion for Default Judgment; denying as moot 36 Motion for Sanctions; denying as moot 21 Motion for Entry of Default; denying as moot 25 Motion for Default Judgment; adopting Report and Recommendations re 30 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 12/12/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.

PLAINTIFF

VS.

CIVIL ACTION NO. 5:16-cv-15(DCB)(MTP)

SHELTON JOLLIFF

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
This cause is before the Court on the plaintiff Henry Hinton,
Jr.’s Motion for Entry of Default (docket entry 21), and Motion for
Default Judgment (docket entry 25).

Magistrate Judge Michael T.

Parker has made a Report and Recommendation (docket entry 30) to
the Court recommending denial of the motions and dismissal of this
action. The plaintiff has filed two motions for extensions of time
to file objections (docket entries 32 and 33), and has filed his
objections (docket entry 35).

The defendant has responded to the

objections (docket entry 37).

The plaintiff has also filed a

motion to amend his Complaint, for a default judgment, and for
sanctions (docket entry 36).
On

February

12,

2016,

the

plaintiff,

Henry

Hinton,

Jr.

(“Hinton”), proceeding pro se and in forma pauperis, filed this
action

pursuant

to

42

U.S.C.

§

1983.

Hinton

claims

that

Mississippi Bureau of Narcotics Agent Shelton Jolliff (“Jolliff”)
racially profiled and illegally stopped him.

Specifically, the

plaintiff alleges that after he drove his vehicle into a Rite Aid

drive-through,

Jolliff

stopped

him

with

“no

probable

cause.”

Instead, according to Hinton, Jolliff stopped him because of the
“lone fact that the Plaintiff was an African American male.”
Amended Compliant, pp. 1-2.

Hinton further contends that “[n]o

judge would issue a probable cause to stop or arrest warrant based
on what Jolliff had.”
arrested
narcotics.

and

searched

Id., p. 4.
by

According to Hinton, he was

Jolliff,

and

the

search

revealed

As a result, on October 6, 2015, the plaintiff pleaded

guilty to three counts of possession of narcotics with intent to
distribute and one count of prescription fraud.
Response (docket entry 11), p. 1.

Plaintiff’s

In addition, the plaintiff

alleges that his guilty plea led to a forfeiture hearing on
November 2, 2015, during which he lost $7,764, a laptop computer,
brief case, printer, camera, and phone.

Id., p. 2.

The plaintiff

asserts that the defendant violated his civil rights, and he seeks
damages for the loss of his property at the forfeiture hearing.
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2),
applies to prisoner proceedings in forma pauperis, and provides
that “the court shall dismiss the case at any time if the court
determines that ... (B) the action or appeal - (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.”

Since Hinton was granted in forma

pauperis status, Section 1915(e)(2) applies to the instant case.

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In his Report and Recommendation, Magistrate Judge Parker
finds that, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994),
Hinton

cannot

bring

a

Section

1983

claim

challenging

the

constitutionality of his conviction unless the conviction has been
reversed, expunged, declared invalid, or called into question by
federal habeas corpus.

Magistrate Judge Parker further recommends

that the plaintiff’s claims be dismissed with prejudice to their
being asserted again, unless and until the Heck conditions are met,
i.e.

if

Hinton’s

conviction

is

reversed,

expunged,

declared

invalid, or called into question by federal habeas corpus.
Hinton’s

Heck

barred

claims

are

legally

frivolous

(see

Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996)), and shall be
dismissed as legally frivolous and for failure to state a claim.
The dismissal shall also count as a strike pursuant to 28 U.S.C. §
1915(g).
Because this action is being dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(I) & (ii), the plaintiff’s Motion for Entry of
Default Judgment (docket entry 21) and Motion for Default Judgment
(docket entry 25) shall be denied as moot.

The plaintiff’s motion

to amend his Complaint, for a default judgment, and for sanctions
(docket entry 36) shall also be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 30) is ADOPTED as the

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opinion of this Court;
FURTHER ORDERED that the plaintiff’s Motion for Entry of
Default Judgment (docket entry 21) and Motion for Default Judgment
(docket entry 25) are DENIED AS MOOT;
FURTHER ORDERED that the plaintiff’s motion to amend his
Complaint, for a default judgment, and for sanctions (docket entry
36) is DENIED AS MOOT;
FURTHER ORDERED that the plaintiff’s motions for extensions of
time to file objections (docket entries 32 and 33) are MOOT,
inasmuch as the plaintiff’s objections were filed October 21, 2016
(docket entry 35);
FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE
to the plaintiff’s claims being asserted again, unless and until
the Heck conditions are met, i.e. if Hinton’s conviction has been
reversed, expunged, declared invalid, or called into question by
federal habeas corpus;
FURTHER ORDERED that the plaintiff’s action is dismissed as
legally frivolous and for failure to state a claim, pursuant to 28
U.S.C. § 1915(e)(2)(B)(I) and (ii).
Since this case is dismissed pursuant to the above-mentioned
provisions of the Prison Litigation Reform Act, it will be counted
as a “strike” pursuant to 28 U.S.C. § 1915(g), which states: “In no
event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner
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has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the
United

States

that

was

dismissed

on

the

grounds

that

it

is

frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.”
If the plaintiff receives “three strikes,” he will be denied
in forma pauperis status and will be required to pay the full
filing fee in order to file a civil action or appeal.
A Final Judgment in accordance with Federal Rule of Civil
Procedure 58 will follow.
SO ORDERED, this the 12th day of December, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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