Merchant v. Langford et al

Filing 27

MEMORANDUM adopting 13 Report and Recommendation. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 6/17/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
HAROLD MERCHANT #1983089

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v.

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KAY LANGFORD, ET AL.

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CIVIL ACTION NO. 6:16cv1122

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Harold Merchant, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit complaining of
alleged deprivations of his constitutional rights with regard to the legality of his confinement. This
Court referred the case 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. The named Defendants are Henderson County Sheriff Ray Nutt, deputy
sheriffs Kay Langford and Botie Hillhouse, and two individuals identified as Tommy Russell and
Bacin Blackwell.
I. Background
Merchant stated that he got out of a halfway house in Fort Worth on April 1, 2014. He
stayed in Dallas for a couple of weeks and then went to Gun Barrel City. On June 3, 2014, he was
at Tommy Russell’s house when officers from the Sheriff’s Department arrived.
Officer Langford had another deputy walk over and pretend to pull something from
Merchant’s pocket. Merchant states that he had already been searched three times and the officers
knew he had no drugs on him, but Russell and Blackwell told the sheriff that the bag of drugs found
belonged to Merchant.

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For relief in his lawsuit, Merchant stated that “I would like to get this drug charge off of me,
the 10 years I did not deserve to get. They could not get me for anything else so they set me up, and
a lot of people was out there.”
II. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report recommending the
lawsuit be dismissed as frivolous and for failure to state a claim upon which relief may be granted.
The Magistrate Judge determined that Merchant’s complaint challenged the legality of his
conviction, which is not properly done through a §1983 lawsuit. Instead, the exclusive means for
challenging the legality of a conviction is through habeas corpus. Thus, the Magistrate Judge
concluded Plaintiff’s §1983 action lacked any arguable basis in law and failed to state a claim upon
which relief may be granted.
III. The Plaintiff’s Objections
In his objections, Merchant states that he is indigent and cannot pay the filing fee for his
lawsuit. He has been in the hospital because he lost four pints of blood. After correcting the name
of one of the defendants from Bacin Blackwell to Barin Blackwell, Merchant asserts that his
conviction was wrong and that he should be entitled to monetary damages in the amount of
$20,000.00 and have the charges against him dropped.
In a letter filed March 17, 2017, Merchant states that he is going to file a state habeas corpus
application under Article 11.07 of the Texas Code of Criminal Procedure because Judge Dan Moore
said that it would not be frivolous, and “my 11.07 that I have not got done yet has been denied
before I have had time to file this.” He asserts that he is working on his state habeas petition and
will send a copy to this Court as well as to Henderson County.
IV. Discussion
The Magistrate Judge correctly determined that Merchant cannot attack the validity of his
conviction in a civil rights lawsuit. Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36

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L.Ed.2d 439 (1973). To the extent Merchant seeks to have his conviction overturned, his claim
lacks an arguable basis in law and fails to state a claim upon which relief may be granted.
In his objections, Merchant states that he is also seeking monetary damages in the amount
of 20,000.00. The Supreme Court has held 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 sentence invalid, the 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 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 v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994); see also Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994). This holding
has been extended by the Fifth Circuit to include claims for injunctive relief as well. Clarke v.
Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc).
Under Heck, the existence of a §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). Because Merchant asserts that his conviction was
improper, a judgment in his favor would necessarily imply that his conviction was invalid. As a
result, his claims for monetary damages should be dismissed with prejudice to the claims being
asserted again until Merchant can meet the Heck prerequisites - in other words, until he can show
that his conviction has been overturned, expunged, or otherwise set aside. See DeLeon v. City of
Corpus Christi, 488 F.3d 649, 657 (5th Cir. 2007).
The on-line judicial records of Henderson County show that Merchant pleaded guilty to and
was convicted of possession of a controlled substance on February9, 2015, receiving a sentence of
10 years in prison. He did not take a direct appeal and has not filed a state habeas corpus
application. Merchant’s claims directly implicate the validity of his conviction and are thus barred
by Preiser and Heck. His objections are without merit.

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IV. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
are without merit. It is accordingly
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE to the
claims being asserted again until such time as Merchant can show that his 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. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 17 day of July, 2017.

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Ron Clark, United States District Judge

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