McCreary v. Russell et al
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION AND ENTERING FINAL JUDGMENT for 5 Report and Recommendations. Plaintiff's objections are overruled, the R&R is adopted and this case is dismissed with prejudice as frivolous and for failure to stat e a claim upon which relief may be granted, and for failure to show proof that the sanctions imposed by the Fifth Circuit in cause no. 09-40708 have been satisfied in full. A copy of this opinion shall be provided to the Administrator of the Three Strikes List for the EDTX. All pending motions are denied. Signed by Judge Michael H. Schneider on 11/13/12. (mjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JODY McCREARY #1694118
MATT BINGHAM, ET AL.
CIVIL ACTION NO. 6:12cv666
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Jody McCreary, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Texas Department
of Criminal Justice, Correctional Institutions Division. 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 Magistrate
Judges. As defendants, McCreary sued state district judge Kerry Russell, Smith County District
Attorney Matt Bingham, and two assistant district attorneys, Richard Vance and Michael West.
McCreary complained that he was subjected to malicious prosecution and abuse of
government power through his prosecution for tampering with evidence. He was convicted of this
charge and is currently serving a 12-year sentence in the Texas penitentiary. McCreary has
challenged this conviction through a federal habeas corpus petition; his petition was dismissed by
the district court, and his appeal of this dismissal remains pending.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed. The Magistrate Judge noted that McCreary has not shown that the challenged
conviction has been set aside, so he cannot maintain an action for malicious prosecution. In addition,
the Magistrate Judge stated that McCreary seeks only monetary damages against defendants who are
protected by judicial or prosecutorial immunity, and that McCreary has not shown that the multiple
sanctions which have been imposed on him by the Fifth Circuit have been satisfied. See, e.g.,
McCreary v. Skeen, et al., slip op. no. 09-40708 (5th Cir., March 18, 2010). The Magistrate Judge
thus recommended that the lawsuit be dismissed as frivolous and for failure to state a claim upon
which relief may be granted, as well as for failure to show proof that the sanctions imposed by the
Fifth Circuit have been satisfied.
McCreary filed objections to the Report on October 11, 2012. In his objections, McCreary
says first that he was “never convicted and sentenced to 12 years” because Judge Russell “did not
pronounce the sentence.” Instead, McCreary argues that Judge Russell falsified court records,
including the judgment of conviction, thus depriving him of equal protection. This objection is
patently without merit.
Next, McCreary states that he is not suing Judge Russell for malicious prosecution, but for
“abuse of government power” and “false imprisonment,” and that as a result, he does not have to
prove that his sentence has been set aside in order to seek relief under Section 1983. This objection
lacks merit; McCreary must show that his conviction has been set aside in order to proceed on any
claims which implicate the validity of his conviction or confinement. Heck v. Humphrey, 114 S.Ct.
2364, 2372 (1994). This objection is without merit.
Third, McCreary states that he is not seeking “monetary damages,” he is seeking “tort
damages.” In his complaint, McCreary says that he is seeking “tort damages” of 32 million dollars
for malicious prosecution and 32 million dollars for false imprisonment. These are monetary
damages, which McCreary is seeking for the alleged torts of malicious prosecution and false
imprisonment. This objection is without merit.
Finally, McCreary argues that Section 1983 lawsuits may be instituted to sue state employees
who are abusing power which is possessed by state law to violate a person’s constitutional rights.
While this may be correct as an abstract principle of general law, it does not provide McCreary the
power to sue defendants possessed of judicial or prosecutorial immunity, nor does it obviate the
necessity for McCreary to show favorable termination of his criminal case even were the defendants
not immune from suit. His objections are without merit.
McCreary did not object to the Magistrate Judge’s conclusions concerning the fact that he
has been sanctioned by the Fifth Circuit and that he has not shown proof that these sanctions have
been satisfied, which represents another basis upon which his lawsuit may be dismissed; accordingly,
he is barred from de novo review by the district judge of these findings and conclusions and, except
upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings
and legal conclusions accepted and adopted by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 5) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as frivolous and for failure to state a claim upon which relief may be granted, and for failure to show
proof that the sanctions imposed by the Fifth Circuit in cause no. 09-40708 have been satisfied in
full. It is further
ORDERED that a copy of this opinion shall be sent by the Clerk to the Administrator of the
Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
It is SO ORDERED.
SIGNED this 13th day of November, 2012.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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