Himes v. Enid Police Department et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATION for 40 Report and Recommendation. This action is DISMISSED, as more fully set out. Signed by Honorable David L. Russell on 7/20/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
AUDREY ALLEN HIMES,
Plaintiff,
v.
ENID POLICE DEPARTMENT,
ROBERTO NORTON, Officer,
KEVIN EVERLY, Officer, and
CASSIE GENTRY, Officer,
Defendants.

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CIV-15-1084-R

ORDER
Plaintiff, a state prisoner appearing pro se, filed this action pursuant to 42 U.S.C. § 1983,
alleging violation of his civil rights. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred
to United States Magistrate Judge Suzanne Mitchell for preliminary review. On July 1, 2016, Judge
Mitchell issued an Amended Report and Recommendation, recommending that the claim raised in
Plaintiff’s Amended Complaint be dismissed without prejudice upon screening pursuant to Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). The matter is currently before the Court on Plaintiff’s
timely objection to the Report and Recommendation, which gives rise to the Court’s obligation to
undertake a de novo review of those portions of the Report and Recommendation to which Plaintiff
makes specific objection. Having concluded this de novo review, the Court finds as follows.
In Heck, the Supreme Court ruled that “to recover damages for . . . harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,” a party raising a § 1983 claim
“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.” 512 U.S. 477 (1994). As

noted by Judge Mitchell, Plaintiff has failed in this regard. In the Objection Plaintiff does not take
issue with Judge Mitchell’s conclusion. Rather, he argues that he was not yet charged when the
incidents occurred. This, however, is not the legal test. Rather, with regard to allegedly
unconstitutional searches that lead to criminal conviction, in this case on domestic assault and drug
charges, the Plaintiff cannot prevail if his conviction remains, because to invalidate the search and
seizure would invalidate his conviction. As such, the law requires that the conviction be invalidated
before any civil rights action may be pursued. Plaintiff does not allege that his convictions have been
overturned or vacated for any reason, and accordingly, his 42 U.S.C. § 1983 claim is premature and
therefore subject to dismissal without prejudice.
For the reasons set forth herein, the Report and Recommendation issued on July 1, 2016
(Doc. No. 40) is hereby ADOPTED IN ITS ENTIRETY and this action is hereby DISMISSED.
IT IS SO ORDERED this 20th day of July, 2016.

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