GARRETT v. MENDEZ et al

Filing 7

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/13/2014. (nz, )n.m.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALLEN DUPREE GARRETT,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 13-5343 (JBS/AMD)

OFFICER MIGUEL MENDEZ,
et al.,
MEMORANDUM OPINION
Defendants.

SIMANDLE, Chief Judge:
Plaintiff Allen Dupree Garrett, pro se, brings this action
under 42 U.S.C. § 1983, in essence challenging his criminal
conviction and bringing claims arising from his arrest and
imprisonment. This action relates to an arrest and a criminal
charge to which which Plaintiff pleaded guilty and
unsuccessfully challenged on direct appeal and on a petition for
habeas corpus, under 28 U.S.C. § 2255, see Garrett v. United
States, No. 13-27, 2014 WL 1334213 (D.N.J. Apr. 2, 2014), and
again on a Fed. R. Civ. P. 60(b) motion, see Order, Garrett v.
United States, No. 13-27 (D.N.J. June 12, 2014), ECF No. 24.
Plaintiff is currently incarcerated and seeks to proceed in
forma pauperis under 28 U.S.C. § 1915. The Court finds as
follows:
1.

Because Plaintiff’s application discloses that he is

indigent, the Court will permit the Complaint be filed without

prepayment of fees, pursuant to 28 U.S.C. § 1915, and order the
Clerk of Court to file the Complaint.
2.

Section 1915(e)(2)(B) requires the Court to screen the

complaint and dismiss any claim that is frivolous or malicious,
fails to state a claim, or seeks monetary relief against a
defendant who is immune from such relief.
3.

By way of background, Plaintiff pleaded guilty to one

count of possession of a firearm by a convicted felon, and on
January 26, 2012, was sentenced to 77 months imprisonment. See
Judgment in a Criminal Case, United States v. Garrett, No. 11242 (D.N.J. Jan. 26, 2012), ECF No. 29. The judgment was
affirmed by the Third Circuit. See Judgment, United States v.
Garrett, No. 12-1338 (3d Cir. Dec. 5, 2012). Plaintiff’s habeas
petition was denied, as was his motion under Fed. R. Civ. P.
60(b).
4.

Plaintiff’s new Complaint asserts claims under 42

U.S.C. §§ 1981 & 1983 for malicious prosecution, unlawful
arrest, racial discrimination in violation of the Equal
Protection Clause, and common-law false imprisonment. He takes
issue with his arrest, arguing that the police lacked probable
cause to arrest him and that he was the victim of racial
profiling.
5.

Plaintiff’s Complaint must be dismissed. The U.S.

Supreme Court has held that

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in
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, 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 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, 512 U.S. 477, 486-87 (1994). See also Deemer
v. Beard, 557 F. App’x 162, 166 (3d Cir. 2014) (stating that the
Third Circuit has “interpreted Heck to impose a universal
favorable termination requirement on all § 1983 plaintiffs
attacking the validity of their conviction or sentence”). Here,
Plaintiff’s claims depend on the impropriety of his stop, arrest
and prosecution, yet he pleaded guilty to possession of a
firearm, and the conviction was upheld on appeal and upon
collateral review. Because Plaintiff’s conviction has not been
invalidated, this action is barred by Heck v. Humphrey, 512 U.S.
at 486-87.
6.

The Third Circuit considered substantially similar

facts in Gibson v. Superintendent of N.J. Dep’t of Law & Publ.
Safety, 411 F.3d 427 (3d Cir. 2005), overruled on other grounds
by Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010)
(overruling based on the accrual date of a § 1983 claim). In
Gibson, the Third Circuit stated:

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[Gibson’s] car was stopped because of a pattern and
practice of racial profiling, not because police had
reasonable suspicion to believe a crime was being
committed.
Generally,
the
absence
of
reasonable
suspicion renders a stop unlawful, see Alabama v.
White, 496 U.S. 325, 329-30 (1990), and evidence
obtained from that unlawful stop excludable, see Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963).
Gibson was arrested when the Defendant Troopers
discovered drugs during the subsequent search of the
car. These drugs were the only evidence supporting the
drug charges against Gibson. Thus, success on his §
1983 claim for false arrest would “necessarily imply”
that he was improperly convicted.
Gibson, 411 F.3d at 451-52 (Fuentes, J., writing the opinion of
the Court with respect to one claim) (parallel citations
omitted). Judge Van Antwerpen, writing the majority opinion in
Gibson with respect to most of the plaintiff’s claims, added:
“if a person can demonstrate that he was subjected to selective
enforcement in violation of his Equal Protection rights, his
conviction will be invalid.” Id. at 440-41 (citing United States
v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973)).
7.

Similarly, here, the only evidence against Plaintiff

was the gun discovered during the police stop. Even setting
aside the fact that Plaintiff pleaded guilty, success on
Plaintiff’s equal protection claim for racial profiling would
necessarily imply that his conviction was improper. See also
Ellis v. Mondello, No. 05-1492, 2005 WL 1703194, at *2 (D.N.J.
July 20, 2005) (dismissing a complaint under § 1915 for failure

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to state a claim when the plaintiff alleged that he was falsely
arrested and convicted as a result of racial profiling).
8.

Moreover, to the extent Plaintiff seeks to challenge

the propriety of his stop, arrest, prosecution and conviction,
he is attempting to bring a second or successive motion for
habeas relief, which is barred except in certain narrow
circumstances not present here. See 28 U.S.C. § 2255(h)
(providing that second or successive motions for relief must be
certified by a panel of the appropriate court of appeals to
contain “(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty . . . ;
or (2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable”). Plaintiff’s attempt to bring a second
or successive petition under § 2255 has not been properly
certified and will not be considered.
9.

For these reasons, Plaintiff’s claims are barred and

the Complaint is dismissed for failing to state a claim upon
which relief may be granted. An accompanying Order will be
entered.

August 13, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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