Hubbard v. Johnston
Filing
12
OPINION AND ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. §§1915A(B) AND UNDER 28 U.S.C. §§1915(e)(2)(B) - All plaintiff's claims under the First Amendment, Fifth Amendment, Thirteenth, and Fourth Amendment claim that Office Johnston had no right to search and arrest him, are dismissed with prejudice to their being asserted again until the Heck v. Humphrey conditions are met. (Ordered by Judge Terry R Means on 11/5/2013) (ult)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RONALD HUBBARD,
(Tarrant No. 0258316)
§
§
§
§
§
§
§
VS.
OFFICER M. JOHNSTON
CIVIL ACTION NO.4:13-CV-370-Y
OPINION and ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. §§
1915A(B) and UNDER 28 U.S.C. §§ 1915(e)(2)(B)
This case is before the Court for review of pro-se inmate and
plaintiff Ronald Hubbard’s case under the screening provisions of
28 U.S.C. §§ 1915A and 1915(e)(2)(B).
Hubbard, an inmate at the
Tarrant County jail, filed a form civil-rights complaint.
In that
document he seeks relief under 42 U.S.C. § 1983, and named as
defendants City of Fort Worth Police Officer M. Johnston. (Compl.
Style; § IV(B).) In response to Court orders, Hubbard filed a more
definite
statement,
and
later,
a
supplemental
more
definite
statement. Hubbard does not challenge anything about his present
confinement, but raises several challenges to the actions of Officer
Johnston during his November 27, 2012 arrest and initial book-in.
(Compl. § V, attachment pages; More Definite Statement (MDS);
Supplemental More Definite Statement Suppl MDS.) Hubbard seeks
compensatory (actual), punitive, and nominal damages against Officer
Johnston. (Compl. § VI.)
The claims arise from events that took place on November 27,
2012, when Officer Johnston arrested Hubbard. Hubbard was arrested
on a charge of theft between $1500 to $20,000, case number 1305977,
and for evading arrest/motor vehicle, case number 1305976. (MDS ¶
8.) Although Hubbard’s complaint, more definite statement and
supplement provided insufficient information about the status of
these charges, Court staff telephone inquiry with the Tarrant County
Sheriff’s office confinement bureau has confirmed that Ronald
Hubbard has now been convicted of both charges. Hubbard was
convicted in the 432nd Judicial District Court, Tarrant County,
Texas, on October 7, 2013, on each charge, and sentenced to 10 years
for the evading-arrest charge, case number 1305976; and to one year
on the theft charge, case number 1305977.1
Hubbard contends that Officer Johnston violated his rights
under the First Amendment to the Constitution, because Johnston
refused, while still at the scene of the arrest, to allow Hubbard
to make a statement explaining that he had been given the keys and
an authorization to drive the car he was accused of stealing. (MDS
¶ 1(a).) Hubbard also contends that Johnston refused to take him to
a hospital where a psychiatric examination would have shown he did
not have the “requisite mental state” to make his actions a crime.
(MDS ¶ 1(b).)
Next, Hubbard alleges Johnston violated his Fourth
Amendment rights because Johnston did not have the right to arrest
and search him. (MDS ¶ 2.) Hubbard also contends that Johnston
violated his Fifth Amendment rights because he failed to investigate
how Hubbard came to have possession of the keys to the car. (MDS ¶
1
The Court takes judicial notice of the public information obtained from
the Tarrant County confinement bureau regarding Tarrant County inmate Ronald
Hubbard, CID number 0258316. See Fed. R. Evid. 901(b)(7)(B).
2
3.) Further, Hubbard alleges that Johnston violated his rights under
the Thirteenth Amendment “because he arrested me without knowing all
the facts,” and because Johnston knew that Hubbard was “being tried
and sentenced for something I had no control or intention of even
doing.” (MDS ¶ 5.)
Johnston also recites the following claim that Johnston used
excessive force:
On Nov. 27th, 2012, I was arrested and Officer M. Johnston
kicked me with his foot and hit me in the head repeatedly
with his handcuffs. I was on the ground not resisting
arrest. He hit me until I became unconscious and started
bleeding from the top of my head. He took pictures but
never called for medical attention for me. I asked to be
take[n] to the hospital, but he said I would be Okay. He
used excessive force and negligence by failing to follow
department policies and procedures, knowing that I was
injured and needed medial attention, He denied my due
process to medical treatment. (Compl. § V.)
Related to this allegation, Hubbard also writes that “it was only
officer Johnston who gave chase over the fence after me, no other
officer was in the backyard with us . . . but the owners of the
house where it took place . . . heard me begging Officer Johnston
to don’t hurt me anymore before I blacked out.” (MDS ¶ 6.)
Hubbard
then contends that Johnston refused to take him to the emergency
room, and took him to the police station, but refused to give him
medical care. (MDS ¶¶ 7-8.) Hubbard also alleges that Johnston did
not immediately call for medical attention because he “knew that the
doctor would have proved that Hubbard was hit in the head by some
type of hard object.” (MDS ¶ 7(c).) Hubbard claims he was not given
3
medical attention until he was taken to the Mansfield jail. (MDS ¶
7(b).)
A complaint filed in forma pauperis that lacks an arguable
basis in law should be dismissed under 28 U.S.C. § 1915.2
Under 28
U.S.C. § 1915(e)(2)(B), a district court retains broad discretion
in determining at any time whether an in-forma-pauperis claim should
be dismissed.3 Furthermore, as a part of the PLRA, Congress enacted
28 U.S.C. § 1915A, which requires the Court to review a complaint
from a prisoner seeking relief from a governmental entity or
governmental
docketing.4
officer
or
employee
as
soon
as
possible
after
Consistent with § 1915A is prior case law recognizing
that a district court is not required to await a responsive pleading
to conduct its § 1915 inquiry.5 Rather, § 1915 gives judges the
power to “dismiss a claim based on an indisputably meritless legal
theory.”6 After review of the complaint and supplemental pleadings
under these standards, the Court concludes that many of Hubbard’s
2
Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)
requires dismissal not only when an allegation of poverty is untrue or the action
is frivolous or malicious, but also when “the action . . . fails to state a
claim on which relief may be granted; or seeks monetary relief against a
defendant who is immune from such relief.”
28 U.S.C.A. § 1915(e)(2)(A) and
(B)(West 2006).
3
See 28 U.S.C.A. § 1915(e)(2)(West 2006); Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.
1990)(discussing authority to dismiss at any time under prior § 1915(d)).
4
See 28 U.S.C.A. § 1915A(a)(West 2006).
5
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
6
Id.,(citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
4
claims under § 1983 must be dismissed, but that he will be allowed
to obtain service of process on defendant Johnston on other claims.
With regard to many of Plaintiff’s claims, the Court concludes
that they are not cognizable under 42 U.S.C. § 1983.
Plaintiff is
seeking relief from this Court against a local police officer over
actions related to the validity of his arrest and convictions in
state court.
Under Heck v. Humphrey,7 the Supreme Court determined
that a plaintiff who has been convicted of a crime cannot recover
damages for an alleged violation of his constitutional rights if
that violation arose from the same facts attendant to the charge for
which he was convicted, unless he proves “‘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.”8 Hubbard asserts several distinct
claims based upon the alleged violation of different constitutional
rights.
But all of his claims under the First Amendment, Fifth
Amendment, Thirteenth Amendment, and the Fourth Amendment claim that
Johnston had no right to search him, must be dismissed.
All of
these claims arise from and are based upon facts interrelated to the
theft charge for which Hubbard was convicted. Because all of such
claims by Hubbard in this action challenge his theft conviction, and
7
512 U.S. 477, 486-87 (1994).
8
Heck, 512 U.S. at 486-87.
5
he has not shown that the theft conviction has been reversed or set
aside in any of the manners listed, any claims for damages under 42
U.S.C. § 1983 are not cognizable under Heck v. Humphrey, and must
be dismissed.9
Although the Heck principle also applies to § 1983 excessiveforce claims, the “determination of whether such claims are barred
is analytical and fact-intensive, requiring [courts] to focus on
whether success on the excessive force claim requires negation of
an element of the criminal offense or proof of a fact that is
inherently
inconsistent
with
one
underlying
the
criminal
conviction.”10 In Bush v. Strain, the United States Court of Appeals
for the Fifth Circuit reversed the district court’s determination
that Heck barred a defendant’s § 1983 claim that the arresting
officers used excessive force where she had been convicted of
resisting arrest:
[A] § 1983 claim would not necessarily imply the
invalidity of a resisting arrest conviction, and
therefore would not be barred by Heck, if the factual
basis for the conviction is temporally and conceptually
distinct from the excessive force claim. Accordingly, a
claim that excessive force occurred after the arrestee
has ceased his or her resistance would not necessarily
imply the invalidity of a conviction for the earlier
9
See Heck, 512 U.S. at 487-88.
10
Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008)(citing Ballard v.
Burton, 444 F.3d 391, 400-01 (5th Cir. 2006)); see also Wadsworth v. Hock, No
3:10-CV-220-0(BF), 2012 WL 1555444, at *5 (N.D. Tex. Jan. 6, 2012), rep. and rec.
adopted, 2012 WL 1563895, (citing Ballard, 444 F.3d at 396, and Wells v. Bonner,
45 F.3d 90, 94 (5th Cir. 1995)(assuming without deciding that a “finding of
excessive force would not ‘imply the invalidity’ of [a] conviction for resisting
a search’”)(internal citation omitted)).
6
resistance.11
Guided by Bush v. Strain and the cases cited therein, this Court
does not have enough information at this time to resolve whether
Hubbard’s claims arising from the alleged excessive force will be
barred by Heck. Thus, Hubbard’s claims against Johnson for the use
of excessive force during his arrest on November 27, 2012, remain
pending before the Court.12
Therefore, all Plaintiff’s claims under the First Amendment,
Fifth Amendment, Thirteenth Amendment, and the Fourth Amendment
claim that Officer Johnston had no right to search and arrest him,
are DISMISSED WITH PREJUDICE to their being asserted again until the
Heck v. Humphrey conditions are met, under authority of 28 U.S.C.
§ 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).13
SIGNED November 5, 2013.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
11
Bush, 513 F.3d at 498.
12
Hubbard’s claims based upon Johnston’s denial of medical care after
arrest, no matter the applicable constitutional basis, also remain pending before
the Court. Hubbard will be allowed to complete summons for service of the
remaining claims upon defendant Johnston through a separate order issued this
same day.
13
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
7
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