Jackson v. Thomas et al

Filing 4

MEMORANDUM ON DISMISSAL. Motion to proceed in forma pauperis (dkt. no 1 ) is granted. This case is dismissed with prejudice. (Signed by Judge Lee H Rosenthal) Parties notified.(amwilliams, 4)

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IN THE UNITED STATES D\STRICT COURT
OF TEXAS
FOR THE SOUTHERN
HOUSTON DIVISION

DIS~ICT

KENRIC LA VAUGHN JACKSON, SR.,
(TDCJ-CID #1505478)
Plaintiff,
vs.
BROCK THOMAS, et at.,
Defendants.

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CIVIL ACTION H-15-0549

MEMORANDUM OPINION ON DISMISSAL
Kenric La Vaughn Jackson, Sr., an inmate of the Texas Department of Criminal JusticeCorrectional Institutions Division, sued in February 2015, alleging denial of due process. Jackson
has neither paid the $350.00 filing fee nor sought leave to proceed without prepaying fees. From his
litigation history, the court presumes that he seeks leave to do so. Jackson, proceeding pro se, sues
the Honorable Brock Thomas, judge of the 338th Judicial District Court of Harris County, Texas;
Tiffany Dupree, Assistant District Attorney for Harris County; and Danilo La Cayo. 1
Jackson alleges that on March 9, 2007, Judge Brock Thomas, the Assistant District Attorney
Tiffany Dupree, and the Harris County grand jury manufacture a fraudulent indictment against him
under Cause Number 1104003. Jackson alleges that the defendants deprived him of the right to be
tried for a felony offense based on an indictment prepared by a grand jury. Instead, he alleges that
the defendants used a preprinted indictment on which the prosecutor simply typed in the allegations;
that the prosecutor never presented any facts to the grand jury; and, as a result, that the indictment

Jackson does not provide any identifying information for this individual. It appears that he was
involved in securing the indictment.
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lacked any legal effect. Jackson asks this court to investigate and set aside his state criminal
conviction.
Under 28 U.S.C. § 1915A, federal courts are authorized to review as soon as practicable a
complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity. The court must dismiss any portion of the complaint that is
frivolous, malicious, or fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. A complaint is frivolous if it
lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31 (1992); Richardson
v. Spurlock, 260 F.3d 495,498 (5th Cir. 2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997». "A complaint lacks an arguable basis in law if it is based on an indisputably meritless
legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not
exist." Davisv. Scott, 157 F.3d 1003,1005 (5th Cir. 1998)(quoting McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997». Dismissal may also be appropriate when it is filed too late. If "it is
clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the
applicable statute of limitations," Gartrell, 981 F .2d at 256, the court may dismiss the case.
In § 1983 cases, the federal courts apply the forum state's general personal injury statute of
limitations, to set the deadline for filing a claim. Burge v. Parish ofSt. Tammany, 996 F.2d 786, 788
(5th Cir. 1993) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989». Federal law determines
when the time for filing starts to run. Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992). Under
federal law, "a cause of action accrues when the plaintiff knows or has reason to know of the injury
which is the basis of the action." Harris v. Hegmann, 198 F.3d 153, 156-57 (5th Cir. 1999)(quoting

Burrellv. Newsome, 883 F.2d416, 418 (5th Cir. 1989»; Stewartv. Parish of Jefferson, 951 F.2d

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681,684 (5th Cir.), cert. denied, 506 U.S. 820 (1992). A plaintiff need not realize that a legal claim
exists, but must know the facts that would support a claim. Piotrowski v. City of Houston, 51 F .3d
512,516 (5th Cir. 1995).
The Texas limitations period for personal injury actions is two years. See TEX. ClV. PRAC.
& REM. CODE ANN. § 16.003(a) (Vernon 2001). Jackson's claim clearly arose in 2007, but he did

not file this suit until February 27,2015, almost six years too late. The statute oflimitations bars
Jackson's claims. They are dismissed. 28 U.S.C. § 1915(e); Ali v. Higgs, 892 F.2d 438 (5th Cir.
1990).
Alternatively, Jackson's claims are barred under Heckv. Humphrey, 512 U.S. 477, 486-87
(1994), because the relief he seeks would necessarily undermine the validity of his 2007 robbery
conviction and sentence. A court must dismiss a § 1983 civil rights claim if granting it would
necessarily imply the invalidity of the plaintiff's conviction or sentence, unless the plaintiff
demonstrates 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 a determination, or
called into question by a federal court's issuance ofa writ of habeas corpus under 28 U.S.C. § 2254.
Heck v. Humphrey, 512 U.S. at 486-87. Jackson has not alleged that his conviction in Cause

Number 1104003 has been reversed, invalidated, or expunged. Until Jackson receives a ruling
declaring his conviction or sentence invalid, he cannot pursue his claim. Id at 488-89; Randell v.
Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, 121 S. Ct. 1601 (2001) ("Because

[plaintiff] is seeking damages pursuant to § 1983 for unconstitutional imprisonment and he has not
satisfied the favorable termination requirement of Heck, he is barred from any recovery.... ").

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Jackson's claims are legally frivolous under §§ 1915(e)(2) and 1915A(b).

Hamilton v.

Lyons, 74 F.3d 99, 102-103 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is
legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated,
or otherwise called into question."). Jackson's claims are dismissed, without prejudice to reasserting
if a court reverses, invalidates, or expunges the underlying conviction or sentence. See Clarke v.

Stalder, 154 F.3d 186, 191 (5th Cir. 1998); Johnson v. McElveen, 101 F.3d 423,424 (5th Cir. 1996).

III.

Conclusion
Jackson's constructive motion to proceed in forma pauperis, (Docket Entry No.1), is

granted, and his claims are dismissed with prejudice under 28 U.S.c. § 1915A(b)(1).
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
to:

(1)

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

Texas, 78711, Fax: [phone];
(2)

the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax:

936-437-4793; and
(3)

the District Clerk for the Eastern District of Texas, 211 West Ferguson, Tyler, Texas

75702, Attention: Manager ofthe Three-Strikes List.
SIGNED on April 28, 2015, at Houston, Texas.

----Lee H. Rosenthal
United States District Judge

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