Harmon v. Crosby et al

Filing 4

MEMORANDUM AND OPINION granting 2 MOTION/APPLICATION to Proceed In Forma Pauperis. This action is dismissed as frivolous, 28 U.S.C. § 1915(e)(2)(B)(i), and any remaining pending motions are denied as moot. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AUSTIN LEE HARMON,
(TDCJ-CID #1942217)

David J. Bradley, Clerk

§
§
§

Plaintiff,

§
§

vs.
OFFICER JOSEPH CROSBY, et al.,
Defendants.

October 30, 2015

§
§
§
§
§

CIVIL ACTION NO. H-15-3007

MEMORANDUM AND OPINION
Austin Lee Harmon, an inmate ofthe Texas Department of Criminal Justice- Correctional
Institutions Division, filed this suit in October 2015, alleging an illegal conviction and sentence.
Harmon, proceeding pro se and in forma pauperis, sued Joseph Crosby, SWAT Team officer;
Brittanie Holmes, Assistant District Attorney for Jefferson County, Texas; Larry Gist, Senior District
Judge of the Jefferson County Drug Impact Court; and Gaylyn Cooper, defense counsel. The
threshold issue is whether Harmon's claims may proceed.
Harmon alleges that law-enforcement officials entered his home illegally in September 2012
and charged him with delivery of a controlled substance. He was later charged with possession of
a controlled substance. He alleges that Assistant District Attorney Holmes misled the jury, withheld
evidence, and engaged in racial profiling at his trial; that Judge Gist improperly punished him for
extraneous offenses and improperly stacked his sentences; and that defense counsel Cooper
provided ineffective assistance of counsel. Harmon seeks his release from custody.
A district court must dismiss a prisoner's § 1983 complaint if the action is malicious or
frivolous, fails to state a claim, or seeks monetary relieffrom a defendant who is immune. 28 U.S.C.

§ 1915(e)(2)(B). Under§ 1915(e)(2)(B)(i), the court may dismiss an informapauperis complaint
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as frivolous. Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007) (citing Blackv. Warren, 134
F.3d 732, 734 (5th Cir. 1998)); Denton v. Hernandez, 504 U.S. 25, 31 (1992); Richardson v.

Spurlock, 260 F.3d 495, 498 (5th Cir. 2001). "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." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998)
(quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
A court must dismiss a civil rights complaint brought under 42 U.S.C. § 1983 when the
complaint, if successful, would necessarily imply the invalidity of the plaintiffs 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 of a writ of habeas corpus under
28 U.S.C. § 2254. Heckv. Humphrey, 512 U.S. 477,486-87 (1994). The issue is whether granting
Harmon the relief he seeks would necessarily undermine the validity of his 2014 conviction and 15year sentence for possession of a controlled substance. Harmon alleges that he was illegally
convicted and sentenced.
Under Heck, Harmon must demonstrate that his conviction and sentence have been reversed,
invalidated, or expunged before he can file this§ 1983 suit. Heck, 512 U.S. at 486-87. Harmon has
not alleged that his conviction was reversed, invalidated, or otherwise expunged. Until he receives
a ruling declaring his sentence invalid, he cannot pursue this claim for relief. ld. 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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Harmon's claims challenging his conviction for possession of a controlled substance are
"legally frivolous" within§§ 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.").
Harmon's claims are dismissed without prejudice to reassertion if the Heck conditions are
met. See Clarke v. Stalder, 154 F.3d 186, 191 (5th Cir. 1998); Johnson v. McElveen, 101 F.3d 423,
424 (5th Cir. 1996).
Harmon's motion to proceed in forma pauperis, (Docket Entry No.2), is granted, this action
is dismissed as frivolous, 28 U.S.C. § 1915(e)(2)(B)(i), and any remaining pending motions are
denied as moot.
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
to:
(1)

the TDCJ- Office ofthe 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 October 30,2015, at H~n;v·~"'~t--------­

Lee H. Rosenthal
United States District Judge

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