Toliver v. Sherman Police Department et al

Filing 12

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 8 Report and Recommendation. ORDERED that the complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Toliver's claims against the Sherman Police Department, Catherine Cr aig and D. Roberson are DISMISSED with prejudice to their being asserted again until the Heck conditions are met. All other claims are DISMISSED with prejudice for all purposes. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by Judge Ron Clark on 9/30/2013. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ANDREW TOLIVER, #1715875

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VS.

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SHERMAN POLICE DEPT., ET AL.

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CIVIL ACTION NO. 4:13cv364

ORDER OF DISMISSAL
Plaintiff Andrew Toliver, a prisoner confined in the Texas prison system, proceeding pro
se and in forma pauperis, filed the above-styled and numbered civil lawsuit. The complaint was
referred to United States Magistrate Judge Amos L. Mazzant, who issued a Second Report and
Recommendation concluding that the lawsuit should be dismissed. Toliver has filed objections.
The lawsuit concerns the circumstances surrounding Toliver’s Grayson County
conviction for two counts of failing to comply with sex offender requirements. Toliver asked for
$80,000 in damages. Magistrate Judge Mazzant concluded that his claims were barred by Heck
v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). In his objections, Toliver persisted in
complaining about his conviction, and he argued that Heck should not apply. However, the
decision in Heck is squarely on point. The Supreme Court held that “when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would the
complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” Id. at 487, 114 S. Ct. at 2372. In the present case, a judgment in

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Toliver’s favor would imply the invalidity of his conviction. The present civil rights lawsuit is
barred by Heck.
The Second Report of the Magistrate Judge, which contains his proposed findings of fact
and recommendations for the disposition of such action, has been presented for consideration,
and having made a de novo review of the objections raised by Toliver to the Report, the court is
of the opinion that the findings and conclusions of the Magistrate Judge are correct, and Toliver’s
objections lack merit. Therefore the court hereby adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
Toliver’s claims against the Sherman Police Department, Catherine Craig and D. Roberson are
DISMISSED with prejudice to their being asserted again until the Heck conditions are met. All
other claims are DISMISSED with prejudice for all purposes. It is finally
ORDERED that all motions not previously ruled on are DENIED.
So ORDERED and SIGNED this 30 day of September, 2013.

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Ron Clark, United States District Judge

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