Johnson v. Lcda Fabiola Acuron Porrate-Doria et al

Filing 28

MEMORANDUM & ORDER GRANTING 19 Motion to Dismiss for Failure to State a Claim; noted and moot 19 Motion to Dismiss for Lack of Jurisdiction; denying 23 Motion for Entry of Default; denying 24 Motion requesting Order; granting 25 Motion for Extension of Time to File Response/Reply. The following motions in Civil No. 15-1571 are denied: 5 Motion to Appoint Counsel; 2 Motion for Leave to Proceed in forma pauperis. The Court finds that Plaintiff's complaint fails to state a claim upon which relief may be granted. Judgment shall be entered dismissing this case with prejudice. Signed by Judge Jay A. Garcia-Gregory on 10/23/2015. (AP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

OBE E. JOHNSON,
Plaintiff,
LEAD CASE CIVIL NO. 14-1841 (JAG)

v.
FABIOLA ACURON PORRATE-DORIA, et al.,

MEMBER CASE CIVIL NO. 15-1571 (JAG)

Defendants.
MEMORANDUM AND ORDER
GARCIA-GREGORY, D.J.
This matter is before the Court on Defendant Commonwealth of Puerto Rico’s (the
“Commonwealth”) Motion to Dismiss. Docket No. 19. Plaintiff Obe E. Johnson (“Plaintiff”) filed
an opposition. Docket No. 26. Also before the Court are Plaintiff’s Motion for Default Entry,
Docket No. 23; Motion for Leave to Proceed in forma pauperis, Civil No. 15-1571, Docket No. 2; and
Motion to Appoint Counsel, Civil No. 15-1571, Docket No. 5. This case concerns Plaintiff’s claims
for monetary damages due to the loss of his carpet cleaning company because of his allegedly
wrongful conviction. Docket No. 5. Plaintiff filed suit against the Commonwealth; his former
attorney, Fabiola Acuron Porrate-Doria (“Porrate-Doria”); and The Puerto Rico Corrections
Administration (the “Corrections Administration”). Docket No. 5; Civil No. 15-1571, Docket No.
5. 1

1

Plaintiff originally filed two separate actions. See Civil No. 14-1841, Docket No. 5; Civil No. 15-1571, Docket No. 5.
Because both actions were based on the same facts, they were consolidated into the earliest-filed case.

Lead Case Civil No. 14-1841 (JAG)
Member Case Civil No. 15-1571 (JAG)

2

The Court GRANTS the Commonwealth’s Motion to Dismiss and hereby dismisses all of
Plaintiff’s claims with prejudice because Plaintiff has not shown that his conviction has been
invalidated, and thus has failed to state a claim on which relief may be granted.2 Accordingly, the
Court also DENIES Plaintiff’s Motion for Default Entry; Motion for Leave to Proceed in forma
pauperis; and Motion to Appoint Counsel.
This is not Plaintiff’s first litigation regarding his allegedly wrongful conviction. In fact
Plaintiff has filed at least ten unsuccessful lawsuits in federal court seeking different kinds of
relief against varying defendants concerning the same conviction. See, e.g., Civil No. 15-1895,
Docket No. 22 (denying Plaintiff’s petition under 28 U.S.C. § 2254 as time-barred); Civil No. 131272, Docket No. 36 (denying Plaintiff’s § 2254 petition due to being time-barred, and failing on
the merits); Civil No. 12-1027, Docket No. 18 (denying Plaintiff’s § 2254 petition for lack of
jurisdiction as it seemingly constituted a second or successive petition); Civil No. 10-1177,
Docket No. 12 (denying Plaintiff’s § 2254 petition for failure to exhaust remedies available in the
Puerto Rico Commonwealth courts); Civil No. 09-1172, Docket No. 9 (denying Plaintiff’s § 2254
petition for failure to state a claim); Civil No. 14-1867, Docket No. 48 (dismissing Plaintiff’s 42
U.S.C. § 1983 claims for failure to state a claim); Civil No. 13-1346, Docket No. 17 (same); Civil
No. 09-1173, Docket No. 9 (same); Civil No. 13-1271, Docket No. 8 (dismissing Plaintiff’s § 1983
claims because Plaintiff had previously brought the exact same claims against the same

2

Because Plaintiff is proceeding in forma pauperis, Docket No. 4, the Court may sua sponte dismiss Plaintiff’s case at
any time for failure to state a claim on which relief may be granted. See 28 U.S.C. 1915(e)(2). Therefore, although
Defendants Porrate-Doria and the Corrections Administration have yet to move to dismiss, the Court sua sponte
dismisses all claims against them.

Lead Case Civil No. 14-1841 (JAG)
Member Case Civil No. 15-1571 (JAG)

3

defendant); Civil No. 09-1639, Docket No. 14 (dismissing Plaintiff’s case for lack of diligent
prosecution).
In this latest action, Plaintiff brings § 1983 claims against the Commonwealth, PorrateDoria, and the Corrections Administration for $25 Million in compensation for the loss of his
company. Docket No. 5; Civil No. 15-1571, Docket No. 5.3 Plaintiff alleges that he lost his
company due to his wrongful conviction. Docket No. 5. He alleges various defects regarding his
conviction, including that he received ineffective assistance of counsel; that there was no
physical evidence tying Plaintiff to the crime; that Plaintiff could not effectively communicate
with his attorney; and that the evidence presented against Plaintiff was contradictory. Id.
Plaintiff’s claims must be dismissed because Plaintiff cannot show that his conviction
has been invalidated. The United States Supreme Court has clearly held that for a plaintiff to
recover damages for an allegedly unconstitutional or invalid conviction, the plaintiff must prove
that the conviction has already “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, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487 (1994); see also Thore v.
Howe, 466 F.3d 173, 179 (1st Cir. 2006). Plaintiff cannot show this. To the contrary, as shown
above, Plaintiff has failed to invalidate his conviction on numerous occasions. See supra at 2-3. In
fact, in his own complaint Plaintiff attached a prior opinion in this district denying Plaintiff’s §
2254 petition to set aside his conviction because it was time-barred and insufficient on the
merits. Docket No. 5 at 25-32 (attaching Civil No. 13-1272, Docket No. 36). Since Plaintiff cannot

3

Although Plaintiff does not specify a specific cause of action in his complaint, his allegations amount to a § 1983
claim as he is seeking monetary damages for the alleged deprivation of his constitutional rights. See 42 U.S.C. § 1983.

Lead Case Civil No. 14-1841 (JAG)
Member Case Civil No. 15-1571 (JAG)

4

show that his conviction has been invalidated, his claims must be dismissed because he has
failed to state a claim on which relief may be granted.4

CONCLUSION
In view of the foregoing, the Commonwealth’s Motion to Dismiss is GRANTED. All of
Plaintiff’s claims are hereby dismissed with prejudice. Judgment will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of October, 2015.
s/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge

4

Since the Court holds that Plaintiff has failed to state a valid claim, there is no need to analyze the
Commonwealth’s additional arguments that Plaintiff’s claims should also be dismissed because the Court lacks
subject matter jurisdiction, Plaintiffs claims are time-barred, and the claims are barred by Eleventh Amendment
immunity. See Docket No. 19 at 5-7; 10-12.