Brown v. Suter et al

Filing 13

MEMORANDUM OPINION; ORDER OF DISMISSAL; AND SANCTION AND WARNING. Sanction and Warning -- It is hereby Ordered that plaintiff is prohibited from any new filings challenging his conviction unless he has first obtained permission from the US District Judge or the Magistrate Judge. Any new filings presented by plaintiff challenging his conviction which are not accompanied by prior permission of the Court shall be filed for record-keeping purposes only and shall then be terminated without considera tion of the merits. Plaintiff is Warned that any future action, whether filed as an action in habeas corpus, a civil rights action, or any other kind of action which challenges his conviction will result in the imposition of "additional and prog ressively more severe sanctions." Dismissal -- It is hereby Ordered that the civil rights complaint filed by plaintiff is Dimissed with prejudice as frivolous, with prejudice to being asserted again until the Heck conditions are met, and for failure to state a claim on which relief can be granted. This dismissal qualifies as a "Strike" under the Prison Litigation Reform Act. (Ordered by Judge Mary Lou Robinson on 4/18/2012) (awc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

GEORGE ROY BROWN, SR., PRO
also known as G. R.
also known as ROY
TDCJ-CID No.

BROWN,
BROWN,
1098499,

SE,

$
$
$
S

$

Plaintiff,

$
$

g

v.

2:12-CV-0086

$

WILLIAM K. SUTER, Clerk of the Supreme

$

Court of the Untied States, ET

$

AL.;

$

Defendants.

$

MEMORANDUM OPINION;
ORDER OF.DISMISSALI AND SANCTION AND WARNING
Plaintiff GEORGE ROY BROWN, SR., acting pro

se, has

filed suit pursuant toTitle 42,

United States Code, section 1983 complaining against WILLIAM K. SUTER, Clerk of the
Supreme Court of the Untied States;

KYLE R. RATLIFF, Deputy Clerk of the Supreme Court of

the United States; Judge PAT CLARK; Dr. TOMMY BROWN; Judge's MAC - KFG; Ms.

WYNONIA HANNON,

a Texas

Notary Public; Ms. KARLA J. M. ROGERS, Attorney at Trial;

Ms. CHRISTINE RENEE BROWN-ZETO, Appeal Attorney; Ms. VICKIE EDGERLY, Orange
County District Clerk; and Mr. JOHN S. MORGAN, Attorney atLaw, and has been granted
permission to proceed in forma pauperis.

Plaintiff alleges defendants SUTER and RATLIFF conspired to fail to submit his petition
to the Supreme Court for review, and defendant CLARK acted in excess of his jurisdiction and
was biased during

plaintiff

s

criminal trial in Judge CLARK's court. Plaintiff also sues a

Dr. TOMMY BROWN, a pathologist who testified as an expert witness for the State; JOHN

MORGAN, Esq., another witness at plaintiff

s

trial; KARLA ROGERS, his trial attorney;

CHRISTINE BROWN-ZETO,his appellate attorney, VICKIE EDGERLY, the Orange County

District Clerk; and WYNONIA HANNON, a Texas Notary Public. Lastly, plaintiff

sues

"JUDGE'S MAC-KFG-CASE No.#l:05-CV-00617 Document 38-1 United States District
Eastern District of Texas," alleging the "Judge Time Barred Claim following Clerk

Error."

The

Court construes this as meaning plaintiff is suing the United States District Judge and the
Magistrate Judge in the United States District Court for the Eastern District of Texas who were

involved in the adjudication of plaintiffls habeas challenge, cause no. 1:05-CV-00617, to his
criminal conviction for aggravated assaultr.

Plaintiff requests that the judgment in cause no. A-0105S3-Rf be reversed and his
sentence vacated. He contends that conviction was obtained "by violation

ofjudicial conduct,

judge bias" and requests an award of $10,000,000.00.

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

Ali

v. Higgs, 892 F.2d 438, 440 (5th

of

Cir. 1990), if it is frivolous3, 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. 1915,A'; 28 U.S.C. 1915(e)(2). The same standards will

'See page 2 of plaintiffs habeas petition in cause no. l:05-CV-0617 in the United States District Court for the Eastern District
Texas, Beaumont Division, aI page 2, #4.

2Plaintifls conviction for aggravated assault in
States

cause no. A-010583-R, challenged in habeas action

l:05-CV-0617 in the United

District Court for the Eastern District of Texas, Beaumont Division/

3,{ claim is frivolous
ifit lacks an arguable basis in law or in fact, Booker v. Koonce,2 F.3d I 14, I
Denton v. Hernandez, 504 U.S. 25, ll2 S.Ct. 1728, 1733, I 1 8 L.Ed.2d 340 (1992).

of

l5 (5th Cir.

1993); see,

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 concems prison conditions. 42 U.S.C.

1997e(c)(l). A Spears hearing need not be conducted for every prose complaint. Wilson

v.

Barrientos,926F.2d 480, 483 n.4 (5th Cir. 1991)4.
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
REQUEST FOR HABEAS RELIEF

Plaintiff has not expressly requested release from incarceration, but reversal of plaintiff

s

conviction and vacation of his sentence would have that effect. To the extent plaintiff is
requesting reversal of his conviction and vacation of his sentence, he is challenging his present
conf,tnement and is requesting relief only available through a petition for

writ of habeas corpus.

Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration

his confinement and seeks immediate or speedier release. Preiser v. Rodriguez,

4lI

of

U.S. 475, 93

S.Ct. 1 827 ,36 L.Ed.2d 439 (1973). Therefore, plaintiff s request that his conviction be
overturned and his sentence vacated must be pursued through an action in habeas corpus.
EXISTING FIFTH CIRCUIT BAR AGAINST CHALLENGES TO CONVICTION

Review of plaintiff s litigation history reveals plaintiff has made repeated attempts to
present his claims in habeas actions. On August 14,2006,

plaintiff

s habeas

action cause no.

1:05-CV-00617 inthe United States District Court for the Eastern District of Texas was

oCf,Greenv. McKaskle,788F.2d 1116, ll20(5thCir.
1986)("Of course,ourdiscussion of Spears shouldnotbeinterpretedto
mean that all or even most prisoner claims require or deserve aSpears hearing. A district court should be able to dismiss as
frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson
questionnaire. ").

dismissed as barred by limitations. Subsequently, plaintiff submitted three motions for order

authorizing a successive 28 U.S.C. S 2254 application, cause nos. 09-40605,10-40298, and 1041304, each of which was denied by the United States Court of Appeals for the Fifth Circuit.

Plaintiff was assessed a $200.00 monetary sanction by the United States Court of Appeals
for the Fifth Circuit in the dismissal of cause no. l0-41304 and was barred from filing any
challenge to his conviction in that Court or in any court subject to the jurisdiction of the United
States Court of Appeals for the Fifth Circuit, until his sanction was paid in

full without first

obtaining the permission of the forum court. Plaintiff was cautioned "that filing any future

frivolous or repetitive pleadings in [the United States Court of Appeals for the Fifth Circuit] or
any court subject to [its] jurisdiction [would] subject him to additional and progressively more
severe sanctions.5"

To the extent the instant lawsuit seeks reversal of plaintiff s conviction and vacation

of

his sentence, it constitutes a challenge to plaintiff s conviction which is barred by the Fifth

Circuit. Plaintiff

has not shown he has satisfied the monetary sanction and did not obtain

permission of this Court prior to filing the instant civil rights action. By filing this action,

plaintiff is attempting to circumvent the bar against future challenges to his conviction imposed
by the United States Court of Appeals for the Fifth Circuit and has violated that bar.

Plaintiff is subject to an additional sanction for having filed the instant suit without first
obtaining the permission of a judicial officer of this Court.

sSee

the February 2, 20ll Order denying Motion for an order authorizing the United States District Court of the Eastern District
of Texas to consider a successive 28 U.S.C. $ 2254 application in cause no. 10-41304 in the United States Court of Appeals for
the Fifth Circuit.

JUDICIAL IMMUNITY

Plaintiff appears to sue the United States District Judge and the Magistrate Judge who
adjudicated his habeas action cause no. 1:05-CV-00617 in the United States District Court for the
Eastern District of Texas, Beaumont

Division. Plaintiff alleges no act or omission by either or

both of these defendants except the dismissal of his action as barred by limitations. Judges enjoy
absolute immunity for judicial acts performed in judicial proceedings. Pierson v. Ray,386 U.S.

547,553-54, 87 S.Ct. 1213,l2l7-18, 18 L.Ed.2d28s (1967). "A judge will not be deprived of
immunity because the action he took was in error, was done maliciously, or was in excess of his
authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all

jurisdiction."' stumpv. sparkrnan,435 u.S.349,356-57,98 S.Ct. 1099, 1105,55 L.Ed.2d,33l
(1978)(quoting Bradley v. Fisher,13 Wall (80 U.S.) 335, 351,20L.Bd.646 (1872)). Plaintiff

s

claims against these defendants unquestionably fall within the scope of acts protected by absolute

judicial immunity. Consequently, plaintiffs claims against the United States District Judge and
the Magistrate Judge who adjudicated his habeas action cause no. 1:05-CV-00617 lack an
arguable basis in law and are

frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,

104

L.Ed.2d 338 (1989).
REQUEST FOR MONETARY RELIEF BARRED BY STATUTE OF LIMITATIONS AND BY HECK

To the extent plaintiff seeks monetary relief, i,e., an award

of

$10,000,000.00, the dates

of the acts or omissions alleged against all defendants, except those acts or omissions alleged
against defendants SUTER and RATLIFF, show they all occurred more than two years before the

April 5, 2012 filing of the instant suit

and are, therefore, barred by

Gaylor,98l F.2d 254,256 (5th Cir. 1993)(There is no federal

limitations. Gartrell

statute of limitations for

v.

civil

rights actions; therefore, the two-year Texas general personal injury limitations period is

applied.). Further, plaintiff

s habeas

challenges show he had timely knowledge of the alleged

acts or omissions by these defendants, defeating any potential argument for tolling.

In addition, to the extent plaintiff s claims call into doubt his conviction, plaintiff

s

claims fall under the rule announced in Heck v. Humphrey, 5l2tJ.S. 477 ,1 14 S.Ct. 2364,2372,
129 L.Ed.2d 383

(1994). The Heck court held that any section 1983 claim which attacks the

unconstitutionality of a conviction (or imprisonment, as the case may be) does not accrue until
that 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." Wells v. Bonner,45 F.3d 90,94 (sth

Cir. 1995). As shown by the Fifth Circuit bar in force against plaintiff, no such favorable
termination to his criminal conviction has occurred. Therefore, any claims for monetary relief
under Title 42, United States Code, section 1983 are subject to dismissal with prejudice to being
asserted again until the Heck conditions are met. Johnson v. McElveen,

l0l F.3d 423, 424 (Sth

Cir. 1996).
DEFENDANTS SUTER AND RATLIFF

Lastly, as to defendants SUTER and RATLIFF, plaintiff claims these two defendants
conspired to fail to submit his petition in 11-6882 to the United States Supreme Court for review.
Conclusory allegations lacking reference to material facts are not sufficient to state a claim

of

conspiracy under section 1983. McAfee v. 5th Circuit Judges,884 F.2d 221 (5thCir.1989), cert.

denied,493 U.S. 1083, 110 S.Ct.

Il4I,I07 L.Ed.2d

1046 (1990). Plaintiff presents nothing

more than speculative and conclusory allegations to support his claim that his petition was not

submitted to the Court for consideration. Review of the docket in I l-6882 reveals plaintiff

s

petition for a writ of mandamus and/or prohibition and motion for leave to proceed in forma
pauperis was filed October

17

,2011 and, on Decemb er 1,201l, was distributed for the

January 6,2012 conference of the Court. It was denied as of January

9,2012. Further, plaintiff

s

petition for rehearing in 11-6882 was filed January 17,2012 and, on February l5,20l2,was
distributed for the March 2,2012 conference of the Court. It was denied as of March 5.2012.

CONCLUSION
SANCTION AND WARNING

By filing the instant cause challenging his conviction without first obtaining the
permission of this Court, plaintiff has violated the bar imposed by the United States Court

of

Appeals for the Fifth Circuit and is subject to the imposition of funher sanctions.

IT IS HEREBY ORDERED that plaintiff is prohibited from any new filings challenging
his conviction unless he has first obtained permission from the United States District Judge or the
Magistrate Judge. Any new filings presented by

plaintiff challenging his conviction which

are

not accompanied by prior permission of the Court shall be filed for record-keeping purposes only
and shall then be terminated without consideration of the merits.
Such repetitive and/or frivolous challenges to his conviction

will

be eligible to be counted

as'ostrikes" under the Prison Litigation Reform Act.

Plaintiff is WARNED that any future action, whether filed as an action in habeas corpus,
a

civil rights action, or any other kind of action which challenges his conviction will result in the

imposition of "additional and progressively more severe sanctions.6" Regardless of how plaintiff
titles the action or what statute(s) he invokes, any future action challenging his conviction will
result in additional and more severe sanctions unless plaintiff first obtains permission from the

forum court for filing the action.
DISMISSAL
Pursuant to Title 28 U.S.C. sections 1915,A. 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 filed pursuant to Title 42,
United States Code, Section 1983, by plaintiff GEORGE ROY BROWN, SR., is DISMISSED

WITH PREJUDICE AS FRIVOLOUS. WITH PREJUDICE TO BEING ASSERTED AGAIN

UNTIL THE HECK CONDITIONS ARE MET, Johnson v. McElveen,

I0l

F.3d 423, 424 (5th

Cir. 1996), and FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
THIS DISMISSAL QUALIFIES AS A "STRIKE'' UNDER THE PRISON LITIGATION
REFORM ACT.

A copy of this Order shall be mailed to plaintiff

and to any attorney of record by

first

class mail.

The Clerk shall also provide a copy of this order by regular mail, facsimile transmission,
or e-mail to:

5See

(l)

the TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, Texas,

the February 2,2011Order denying Motion for an order authorizing the United States District Court of the Eastem District
of Texas to consider a successive 28 U.S.C. $ 2254 application in cause no. 10-41304 in the United States Court of Appeals for

the Fifth Circuit.

78711, Fax Number (512) 9362159; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas

77342-0629, fax: [phone]; and (3) the District Clerk for the Eastern District of Texas,
Tyler Division, 211 west Ferguson, Tyler, Texas, 757}2,Attention: Manager of the
Three-Strikes List.

It is SO ORDERED.
Signed this

the t

day of

Apr i1,2012.

United States District Judee