Belle v. Tyler Police Department et al

Filing 10

ORDER ADOPTING 6 Report and Recommendations. This civil rights action is DISMISSED without prejudice, with the refiling conditioned upon a showing that the pltf's 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. The dismissal of this lawsuit shall have no effect on Belle's right to challenge his conviction through any lawful means, including but not limited to a state habeas corpus application or a federal habeas corpus application; however, Belle is reminded that he cannot seek federal habeas corpus relief until his state remedies have been exhausted. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Leonard Davis on 10/28/08. cc:pltf 10-29-08(mll, )

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS T Y L E R DIVISION J A M S E Y BELLE v. TYLER POLICE DEPARTMENT, ET AL. CIVIL ACTION NO. 6:08cv362 M E M O R A N D U M ADOPTING REPORT AND RECOMMENDATION O F THE UNITED STATES MAGISTRATE JUDGE A N D ENTERING FINAL JUDGMENT T he Plaintiff Jamsey Belle, proceeding pro se, filed this lawsuit under 42 U.S.C. 1983 com pla ining of alleged deprivations 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 A m end ed Order for the Adoption of Local Rules for the Assignment of Duties to United States M a gistra te Judges. In his complaint, Belle says that in September of 2006, he was pulled over by a Tyler police officer named Tommy Louis. He was told that the traffic stop was on a video recording; Belle sa ys that he told his attorney about this, and she wrote to the Tyler police department asking for the vid eo recording and the voice recording for his upcoming trial date. However, Belle says, Lacy later told him that the video recording and the voice recording failed to give a clear picture of the traffic stop. He says that due to "poor maintenance or a ltera tion," the recordings were not available for trial in his case. Belle was convicted of the offense of possession of a controlled substance. After this conviction, he filed a complaint with the Tyler police department, but never received a response about w ha t was done about "possible obstruction of justice and the altering of a video recording and voice recording of this traffic stop." Belle asks for compensation in damages due to being denied the right of a ccess to the evidence found on the video tape and voice recording. 1 A fter reviewing the pleadings in the case, the Magistrate Judge issued a Report recom m end ing that the lawsuit be dismissed without prejudice as frivolous, with refiling conditioned u po n Belle's showing that his conviction has been overturned, expunged by executive order, declared inva lid in a state collateral proceeding, or called into question through the issuance of a federal writ of ha bea s corpus. Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994). The Magistrate Judge further recom m ended that this dismissal of the lawsuit have no effect upon Belle's right to challenge his conviction through any lawful means, including but not limited to a state habeas corpus application u nder Article 11.07 of the Texas Code of Criminal Procedure or a federal habeas corpus application u nd er 28 U.S.C. 2254. Belle filed a response to the Magistrate Judge's Report on October 6, 2008. In this response, he says that he has no objection to a dismissal of his lawsuit and that he brought the lawsuit in good faith. He states that he should have had an opportunity to view the videotape before trial. He a lso asks that the Court "suspend" his lawsuit while he pursues the challenge to his conviction. A suspension of the lawsuit is unnecessary because the statute of limitations will not begin to run until the Heck pre-conditions are met. Stephenson v. Reno, 28 F.3d 26, 27-28 (5th C ir.1 9 9 4 ). The recommendation made by the Magistrate Judge is correct. The Court has conducted a careful de novo review of the pleadings in this cause, inclu ding the original complaint, the Report of the Magistrate Judge, and the Plaintiff's response thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct a n d that to the extent that Belle's response objects to this Report, such objections are without merit. It is accordingly ORDERED that the Report of the Magistrate Judge is ADOPTED as the opinion of the D istr ict Court. It is further ORDERED that the above-styled civil rights action be and hereby is DISMISSED withou t prejudice, with the refiling thereof conditioned upon a showing that the Plaintiff's conviction ha s been overturned, expunged by executive order, declared invalid in a state collateral proceeding, or 2 ca lled into question through the issuance of a federal writ of habeas corpus. The dismissal of this la w su it shall have no effect upon Belle's right to challenge his conviction through any lawful means, inclu ding but not limited to a state habeas corpus application under Article 11.07 of the Texas Code of C rim ina l Procedure or a federal habeas corpus application under 28 U.S.C. 2254; however, Belle is rem inded that he cannot seek federal habeas corpus relief until his state remedies have been exhausted. I t is further ORDERED that any and all motions which may be pending in this action are hereby D E N IE D . So ORDERED and SIGNED this 28th day of October, 2008. __________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE 3

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