Nowlin v. Shannon et al

Filing 10

Memorandum Opinion and Order... The court ORDERS that all claims and causes of action asserted by plaintiff by his complaint in the above-captioned action be, and are hereby, dismissed with prejudice pursuant to the authority of 28 U.S.C. § 1915A(b) (1). (Ordered by Judge John McBryde on 10/20/2015) (wxc)

l.S. DISTRICT COl RT
DISTRICT OF TE.\AS
FILE f)

NORTHER~

IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

COUR

s

1:1' 2 0 2015

CLERK, L.S. DISTRICT COl In

OLIN RAY NOWLIN,

By---::----llqwt,·

§
§

Plaintiff,

§
§

vs.

§

NO. 4:15-CV-778-A

§

JOE SHANNON, JR.

I

ET AL.

§

I

§

Defendants.

§

MEMORANDUM OPINION
and
ORDER
Plaintiff, Olin Ray Nowlin, a prisoner incarcerated in a
facility of the Texas Department of Criminal Justice, filed this
suit pro se under 42 U.S.C.

§

1983, on October 5, 2015, in the

United States District Court for the Eastern District of Texas,
Beaumont Division, which by order signed October 12, 2015,
transferred the action to this court.
I.
The Complaint
Plaintiff names in his complaint as defendants "JOE SHANNON
JR,

. . prosecuting attorneys office of Tarrant county Texas,H

and "STATE OF TEXAS/ CITY OF FORT WORTH. PROSECUTING ATTORNEYS
OFFICE AND IT:S EMPLOEES.H

1

Doc. 1 at 3 (errors in original) . 1

The "Doc._" references are to the numbers assigned to the referenced documents on the civil
docket in this Case No. 4:15-CV-778.

1
i

As well as the court can interpret the allegations of the
complaint and plaintiff's supporting memorandum of law, plaintiff
has alleged that:
In 1998 he was tried and convicted in a District Court of
Tarrant County, Texas, of aggravated sexual assault of a child
and was sentenced to life imprisonment after the jury returned a
verdict of guilty on April 1, 1998.

Id. at 4.

During jury

deliberations the prosecutor went into the jury room and gave the
jury a forged document.

Id.

Plaintiff was not allowed to

question the person that wrote the affidavit because there was no
such person, with the consequence that plaintiff's right of
confrontation was violated.

Id.

Plaintiff does not ask that his

conviction be overturned, but only that the State be required to
turn over to him the affidavit and provide proof to this court
that there is a real person whose name appears on the document as
the affiant.

Id.

The State of Texas has the affidavit.

Id.

Success in this suit would only give him access to the affidavit,
which may prove exculpatory or inculpatory, but in no way will
success in this suit imply the unlawfulness of the custody by the
State of the affidavit.

Id.

By way of relief, plaintiff requests that the court:
Order the Tarrant county prosecutors office to
supply the petitioner a certified copy of the
affidavit, and the courts run a identifacation check
2

through the dept of public safty to insure that there
is such a person. and that the state comply with this
courts order.
Id.

(errors in original).
II.
Screening Pursuant to 28 U.S.C.

§

1915A

As a prisoner seeking redress from government officials,
plaintiff's complaint is subject to preliminary screening under
28 U.S.C.

§

1915A, regardless of whether he is proceeding in

forma pauperis.
Cir. 1998).

See Martin v. Scott, 156 F.3d 578, 579-80 (5th

Section 1915A(b) (1) provides for sua sponte

dismissal if the court finds that the complaint is either
frivolous or fails to state a claim upon which relief may be
granted.

A claim is frivolous if it "lacks an arguable basis in

either fact or law."
(1989).

Neitzke v. Williams, 490 U.S. 319, 325

A complaint fails to state a claim upon which relief can

be granted when, assuming that all the allegations in the
complaint are true even if doubtful in fact,

such allegations

fail to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted) .

After considering

plaintiff's claims as described in the complaint, the court
concludes that they are frivolous and fail to state a claim for
relief against any defendant.
3

III.

Analysis
Plaintiff provides the court no authority in support of the
relief he seeks, nor is the court aware of any such authority.
Although the complaint does not suggest that plaintiff is seeking
any relief against the prosecutor, the court notes in passing
that if he were to be seeking any such relief, the prosecutor
would enjoy absolute immunity.
259, 273

Buckley v. Fitzsimmons, 509 U.S.

(1993).

While plaintiff maintains that he is not in this action
seeking to obtain a ruling that will imply the unlawfulness of
his custody, and that his complaint is that "[t]he states refsal
to release the affadavit .. has deprived him of his liberty
intrest in utilizing state procedures to obtain reversal of his
conviction and or obtain a pardon," id.

(errors in original),

plaintiff appears to be attempting to avoid the effect to the
ruling of the Supreme Court in Heck v. Humphrey that:
for allegedly unconstitutional conviction or imprisonment,
or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 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, 28 u.s.c. § 2254.

4

512 U.S. 477, 486-87 (1994)

(footnote omitted).

A favorable

ruling for plaintiff by this court would necessarily imply the
invalidity of plaintiff's 1998 conviction and sentence.
Because of the uncertainty as to the exact nature of
plaintiff's complaint, the court cannot say for certain that
there is a limitations bar to whatever claim he is making.

The

applicable limitations period provided by Texas law controls in a
§

1983 action such as this.

265 (5th Cir. 1992).

Jackson v. Johnson, 950 F.2d 263,

The Texas residual limitations period is

four years after the day the cause of action accrues.
Prac. & Rem. Code

§

Tex. Civ.

16.051.

Whatever view the court takes of plaintiff's action, the
action appears to be without legal merit.

Thus, the court is

sua sponte dismissing the action pursuant to the authority of
28 U.S.C.

§

1915A(b) (1).

Plaintiff fails to state a claim upon

which relief may be granted and his action is frivolous.
IV.

Order
Therefore,
The court ORDERS that all claims and causes of action
asserted by plaintiff by his complaint in the above-captioned

5

action be, and are hereby, dismissed with prejudice pursuant to
the authority of 28 U.S.C.

§

1915A(b) (1).

SIGNED October 20, 2015.

6