Jackson v. Clark et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Report of the Magistrate Judge is hereby ADOPTED as the opinion of the District Court. It is further ORDERED that the above-styled civil action be and hereby is DISMISSED without prejudice, subject to Jacks ons showing that the conviction has been overturned, expunged by executive order, declared invalid in a state collateral proceeding, or called into question through the issuance of a federal writ of habeas corpus. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge T. John Ward on 2/2/09. (ch, )

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS M AR S H A L L DIVISION K IN N E D Y JACKSON v. JUSTIN CLARK, ET AL. § § § CIVIL ACTION NO. 2:07cv168

M E M O R A N D U M ADOPTING REPORT AND RECOM M E N D A T I O N O F THE UNITED STATES M A G I ST R A T E JUDGE A N D ENTERING FINAL JUDGM E N T T he Plaintiff Kinnedy Jackson, proceeding pro se, filed this civil rights lawsuit under 4 2 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States M a gistra te Judges. Jackson complains of an incident which occurred on April 28, 2005, involving a confront a t i o n between himself and a Marshall Police Department officer named Justin Clark. As a resu lt of this incident, Jackson was charged with assault on a public servant, resisting arrest, retaliation, a nd being a felon in possession of a firearm. He sued two police officers, Justin Clark and Scott Beck; police sergeant McCain, district attorney Joe Black, and his defense counsel, Vernard Solomon. J a ck son pleaded guilty to the offense of assault against a public servant, receiving a sentence of three yea rs in prison. For relief in his lawsuit, Jackson asks that he be pardoned or that his name be cleared from any wrongdoing. He asks to be compensated for lost wages for the job he lost due to being inca rcera ted, and says that he is seeking compensation for one million dollars due to being incarcerated for 26 months on a wrongful conviction.

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A fter review of the pleadings, the Magistrate Judge issued a Report recommending that the lawsuit be dismissed. The Magistrate Judge noted that in Heck v. Humphrey, 114 S.Ct. 2364 (1 9 9 4 ), the Supreme Court stated that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions which would render a conviction or senten ce invalid, a Section 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 su ch determination, or called into question by a federal court's issuance of a writ of habeas corpus under 2 8 U.S.C. 2254. Heck, 114 S.Ct. at 2372; see also Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994). Under Heck, the maturity of a Section 1983 claim depends on whether a judgment in the Plaintiff's favor would necessarily imply the invalidity of his conviction or confinement. Hudson v . Hughes, 98 F.3d 868, 872 (5th Cir. 1996). In this case, Jackson was convicted of assault on a public serva nt. The Magistrate Judge concluded that Jackson's allegations, if proven, would clearly call the va lidity of this conviction into question, inasmuch as Jackson asserts that he never engaged in assaultive con du ct. Consequently, the Magistrate Judge said, in order to obtain the damage award which he seek s, Jackson must show that his 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 under 28 U.S.C. 2254. Heck, 114 S .C t. at 2372. He has not made such a showing. The on-line records of the Texas Court of Criminal A ppea ls shows that Jackson filed an application for the writ of habeas corpus in state court, which was den ied without written order on the findings of the trial court without a hearing on July 25, 2007. Ex Pa r te Jackson, docket no. WR-67,897-01 (available online at http://www.cca.courts.state. tx.u s/opinions/C a se.a sp? FilingID = 2 5 2 9 9 9 ). He has not filed a federal habeas corpus petition in the E a stern District of Texas, and his pleadings make clear that his conviction has not been reversed or otherw ise overturned. Until Jackson makes such a showing, he cannot obtain damages for his claim, w hich clearly calls the validity of his conviction into question.

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T he Magistrate Judge also stated that Jackson cannot obtain the other relief he seeks, w hich is the "clearing of his name from any wrongdoing," through the vehicle of a civil rights lawsuit u nder Section 1983. This in effect is a request to set aside his conviction, which is relief that can only be granted, in federal court, through habeas corpus proceedings. See Johnson v. Pfeiffer, 821 F.2d 1 1 2 0 , 1123 (5th Cir. 1987); Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983). Because all of J a ck son 's claims implicate the legality of his confinement, whether directly or indirectly, he must seek relie f through the writ of habeas corpus first, before he pursues his claim as a civil rights lawsuit. H e r n a n d e z v. Spencer, 780 F.2d 504, 506 (5th Cir. 1986). The Magistrate Judge concluded that until J a ck son meets the Heck prerequisites by showing that his conviction has been overturned, expunged by execu tive order, held invalid in a state collateral proceeding, or called into question by a federal court's issu a nce of a writ of habeas corpus, this lawsuit cannot proceed, but must be dismissed without pr eju dice until such time as the Heck preconditions are met. See Clarke v. Stalder, 154 F.3d 186, 188 (5 th Cir. 1998); Price v. City of San Antonio, 431 F.3d 890, 895 (5th Cir. 2005). A copy of the Magistrate Judge's Report was sent to Jackson at his last known address, retu rn receipt requested, but no objections have been received; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grou nds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions a ccepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F .3 d 1415, 1430 (5th Cir. 1996) (en banc). The Court has carefully reviewed the pleadings and documents in this case, as well as the Report of the Magistrate Judge. Upon such review, the Court has concluded that the Reports of the M a gistra te Judge are correct. It is accordingly ORDERED that the Report of the Magistrate Judge is hereby ADOPTED as the opinion o f the District Court. It is further ORDERED that the above-styled civil action be and hereby is DISMISSED without preju dice, subject to Jackson's showing that the conviction has been overturned, expunged by executive

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order, declared invalid in a state collateral proceeding, or called into question through the issuance of a federal writ of habeas corpus. See Price v. City of San Antonio, 431 F.3d at 895. The dismissal of this lawsuit shall not prevent Jackson from challenging his conviction through any lawful means, in state or federal court, nor from refiling this lawsuit in the event that the Heck pre-conditions are met. It is fu r th er ORDERED that any and all motions which may be pending in this action are hereby D E N IE D .

SIGNED this 2nd day of February, 2009.

__________________________________________ T. JOHN WARD UNITED STATES DISTRICT JUDGE

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