Hernandez v. Bouchard

Filing 18

MEMORANDUM OPINION AND ORDER OF DISMISSAL: Civil Rights Complaint filed by plaintiff is dismissed with prejudice as frivolous until the Heck conditions have been met, and for failure to state a claim on which relief can be granted. See Opinion for further specifics. (Ordered by Judge Mary Lou Robinson on 3/22/2012) (egb)

IN THE TINITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMAzuLLO DIVISION

RODGER PHILLIP HERNANDEZ, PRO
also known
ROGER PHILLP
also known
PHILLIP

SE,

as
HERNANDEZ,
as
HERNANDEZ,
I?No. 10071501,
loufty
Previous TDCJ-CID No. 647097,

Plaintiff,

$
$
5
5
$
$
$
E

$

v.

$

Sheriff TERRY BOUCHARD.

$
$

2:10-CV-0262

$

Defendant.

$

MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff, proceeding pro se, filed the instant cause while

a prisoner confined

in the

Henderson County Justice Center, pursuant to Title 42,rJnited States Code, section 1983,

complaining against the above-named defendant and was granted permission to proceed in forma

pauperis' This cause was administratively closed January 12,20ll pursuant to the Youngerl
doctrine and was reopened May 19, 20lL

Plaintiff sues defendant Sheriff Terry BOUCHARD, the Sheriff of Ochiltree County,
claiming false imprisonment and unlawful restraint and arguing that the deputy sheriff who took
the complaint against plaintiff didn't do a proper investigation. Plaintiff contends Ochiltree
County didn't have jurisdiction over the subject matter which was the basis for charges there
because the underlying incident occurred

in Potter County. Plaintiff also says the complaint by

his ex-girlfriend was false and malicious.

Plaintiff requests an award of compensatory damages in an unspecified amount for false
imprisonment and unlawful restraint.

tYounger

v.

Harris,4Ol U.S. 37, 9l S.Ct. 746 (lg7l).

JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a
govemmental entity, the Court must evaluate the complaint and dismiss it without service
process,
a

Ali

v. Higgs, 892

F

of

.2d 438, 440 (5th Cir. I 990), if it is frivolous2, malicious, fails to state

claim upon which relief can be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(eX2). The same standards will
support dismissal of a suit brought under any federal law by a prisoner confined in any jail,

prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C.
1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilsonv.
Barrientos, 926 F.2d480, 483 n.4 (5th Cir. 1991)3.
The District Judge has reviewed the facts alleged by plaintiff to determine if his claim
presents grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS
The Court takes the facts and arguments discussed in this analysis from plaintifPs

complaint, his May 16,2011 motion to reopen the case, and his July 20, 2011 motion for
summary judgment.

Initially, the Court notes plaintiff

s allegation that the deputy

sheriff who took the

complainant's report failed to perform a proper investigation, is merely an allegation

of

negligence by the deputy sheriff, who is not a defendant, and will not support a claim against
defendant BOUCHARD under section 1983. Grffithv. Johnston,899F.2d1427,l435 (5th Cir.

1990). The acts of subordinates trigger no individual section 1983 liability for supervisory

offtcers. Champagne v. Jefferson Parish Sheriffs Office,l88 F.3d 312,314(5th Cir. 1999). This
24cfaimisfrivolousifiJJTkJ-an-?Fgalle_b3-sisrn-_!aworinfact,Bookerv.Koonce,2F.3dll4,
Denton v. Hernandez,504 u.s. 25, I

ItS.Ct.

1728, 1733,1 l8 L.Ed.2d 340 (t992).

ll5(5thCir.

1993);see,

3Cf, Green
u.. McKaskle,788.F.2d ll.16, ll20 (5th Cir. 1986) ('Of course, our discussion of Spears should not be interpreted
to mean that all or even mo_st prisoner claims. require or deserve'a Sp ears hewing. A district court should be able to dismiis as
frivolous a.significant numbei of prisoner suits dn the complaint al6ne or the co-mplaint together *ittt ttrJ Watson
questionnaire. ").

claim lacks an arguable basis in law and is frivolous

.

Neitzke v. Williams. 490 U.S. 319. 109

s.ct. 1827, r04L.Ed.2d 338 (1989).
While plaintiff asserts a claim of false arrest against defendant Sheriff BOUCHARD,

plaintiff

has pled he was arrested in Henderson County by Henderson County law enforcement

personnel, and the records plaintiff has presented to the Court show he was arrested on a
Henderson County charge of aggravated assault with a deadly weapon
[plaintiff s May

16,20Il

Motion to Reopen Exhibits 1 -2]. Plaintiff states he was also detained on warrants out of Ector
County and Ochiltree County. Nothing in the facts alleged by plaintiff indicates any personal

involvement or wrongful action by defendant BOUCHARD.

Plaintiff complains that, while he was detained in Henderson County awaiting trial on his
Henderson County charges, the bond on his Ochiltree County charges was changed from
$4,000.00 to "no bond," but plaintiff alleges no fact to show defendant BOUCHARD or even
anyone in his office had anything to do with setting

plaintiff

s

bond or changing it to a "no

bond." The records presented by plaintiff show Ector County also issued
plaintiff [plaintiff

s

May 9, 201 I Motion to Reopen at Exhibit

l).

a

"no bond" on

Plaintiff s bond on his

Henderson County charges was $10,000.00 [plaintiff s May 9,2011 Motion to Reopen at

Exhibit 2l; however, plaintiff did not bond out but remained in jail. He was tried on the
Henderson County charges on April 18, 2010 and was found not guilty [plaintifPs May 16,20lT

Motion to Reopen at p.4 of
a false charge; however,

17

, Page

ID

31I

. Plaintiff

complains he spent 9-l 12 months in j ail on

this was on the Henderson County charge, with which defendant

BOUCHARD was not involved. By these allegations, plaintiff has failed to state a claim against
defendant BOUCHARD on which relief can be granted.

Plaintiff says he should have been taken to Ector County next to face his charges there,
but was taken Ochiltree County, where he was arraigned and a $4,000.00 bond was set. Plaintiff
argues Ochiltree County had no jurisdiction because the events underlying his criminal charges

there actually occurred in Potter County. Plaintiff also argues the indictment and prosecution

occurred outside the statute of limitations. Plaintiff alleges no fact to show the personal

involvement of defendant BOUCHARD in any of the above-listed acts and has failed to state a
claim against him.
Lastly, plaintiff alleges he requested to talk with the County Attorney and that the County
Attomey presented him with a plea agreement. Plaintiff says the Chief Deputy told plaintiff
there were no other detainers or holds on him and

if

he accepted the plea agreement, he would be

free that very day. Nevertheless, plaintiff makes clear that he knew of the Ector County charges
against

him. Plaintiff

says he waived counsel, accepted the plea agreement, pled guilty to the

charges against him in Ochiltree County, was sentenced and was given credit for time already
served in satisfaction of his sentence. Plaintiff says he was then taken to Ector County where he
had to deal with the parole revocation charges pending against him there,

Again, assuming any or all of the above actions were wrongful, plaintiff has not alleged
any fact showing personal involvement by defendant BOUCHARD or pled any other theory

under which BOUCHARD could be liable. Sheriff BOUCHARD is not personally liable under
section 1983 for the acts of his subordinates. Champagne v.
188 F.3d 312,314(5th

Jffirson Parish Sheriffs Oflice,

Cir. 1999).

The Court also notes plaintiff s repeated arguments that (1) the complainant lied,

(2) Ochiltree County had no jurisdiction of his alleged crimes because they occurred in potter
County, and (3) he was prosecuted outside the statute of limitations. These objections, of course,

would tend to cast doubt upon the Ochiltree County convictions resulting from his guilty pleas.
In Heckv. Humphrey, 512U.5.477 (1994), the United States Supreme Court held that a

claim for monetary damages which essentially challenges the plaintiffs conviction or
imprisonment is not cognizable under 42 U.S.C. $ 1983 unless the complainant can show
favorable termination or invalidation of the conviction.

[I]n order to recover
lmprlsonment,
render a conviction or sentence invalid, a $ 1983 plaintiff must prove that the
4

conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized tb make sucfi determination,
or called into_ question by a federal court's issuance of a writ of habeas corpus,
28 U.S.C._$ 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under $ 1 983. Thus,
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 muit be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiffs
aclion, even if successful, will not demonstrate the invalidity of any outstanding
c-riminal judgment against the plaintiff, the action should bsallowdd to proceed, in
the absence of some other bar to the suit.

Id. at486-87 (footnotes omitted) (emphasis added); see also Boydv. Biggers,3IF.3d279,
284-85 (5th Cir.1994). Moreover, the United States Court of Appeals for the Fifth Circuit
applies the holding of Heckto cases where the plaintiff has been released. See Randell

v.

Johnson,227 F.3d 300, 301 (5th Cir.2000).

Plaintiff failed to allege facts showing defendant BOUCHARD was involved in the
decision to prosecute his cases despite the alleged untruthfulness of the complainant, any

jurisdictional flaws, or the alleged expiration of limitations. In any event, such claims are barred
by the Heck doctrine. Plaintiffs May

16,20ll pleading

and the attachments thereto affirmatively

demonstrate that his Ochiltree County convictions have not 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."

Plaintiffs claims lack an arguable basis in law and are frivolous until
been met. Johnson v. McElveen,

the Heck conditions have

l0l F.3d 423, 424 (sthCir. 1996).
CONCLUSION

For the reasons set forth above and pursuant to Title 28, United States Code, sections
1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is

HEREBY ORDERED that the Civil Rights Complaint flrled pursuant to Title 42, United States
Code, Section 1983, by plaintiff RODGER PHILLP HERNANDEZ is DISMISSED WITH

PREJUDICE as FRIVOLOUS, AS FRIVOLOUS UNTIL THE HECK CONDITIONS HAVE

BEEN MET, and FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk shall provide a copy of this order by regular mail, facsimile transmission, or e-

mail to: plaintiff and to the District Clerk for the Eastern District of Texas, Tyler Division, 211
West Ferguson, Tyler, Texas, 75702, Attention: Manager of the Three-Strikes List.

It is SO ORDERED.
Signed this

the

//

f

day of Mar ch,2012.