Marshall v. Johnson et al

Filing 9

MEMORANDUM AND ORDER Email sent to Manager of Three Strikes List. (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROMARCUS DEAN MARSHALL,
TDCJ #01043741,
Plaintiff,
v.
KYLE B. JOHNSON, et al.,
Defendants.

§
§
§
§
§
§
§
§
§
§

September 11, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1642

MEMORANDUM AND ORDER
The plaintiff, Romarcus Dean Marshall (TDCJ #01043741), is an inmate in
custody of the Texas Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”). Marshall has filed a pro se civil rights complaint under 42 U.S.C.
§ 1983, and he proceeds in forma pauperis. Because this case is governed by the
Prison Litigation Reform Act, the Court is required to scrutinize the pleadings and
dismiss the complaint in whole or in part if it is frivolous, malicious, or fails to state
a claim upon which relief may be granted. 28 U.S.C. § 1915A. After reviewing all
of the pleadings as required, the Court concludes that this case must be dismissed for
reasons that follow.

I.

BACKGROUND
Marshall is currently serving a life sentence that he received in the 179th

District Court for Harris County, Texas, as the result of his conviction for capital
murder in cause number 833880.1 That conviction was affirmed on direct appeal in
an unpublished opinion that summarized the evidence presented during Marshall’s
jury trial, which showed that Marshall was charged as a party to the murder of
Anastacio Sandoval during an armed robbery. See Marshall v. State, No. 07-01-0426CR, 2003 WL 23024515, *1-3 (Tex. App. — Amarillo Dec. 29, 2003, pet. ref’d).
Marshall sought a federal writ of habeas corpus to challenge that conviction under 28
U.S.C. § 2254, but his petition was dismissed with prejudice after the court
determined that Marshall’s claims were without merit and that he was not entitled to
relief. See Marshall v. Stephens, Civil No. H-05-4302 (S.D. Tex. Jan. 18, 2007).
Marshall now sues two criminal defense attorneys, including the public
defender who was appointed to represent him in cause number 833880 (Kyle B.
Johnson) and another public defender (Wayne T. Hill), who was appointed to
represent Marshall’s co-defendant, James Hanes.2 Marshall also sues the prosecutor,

1

See Texas Department of Criminal Justice - Offender Information, available at:
http://www.tdcj.texas.gov (last visited Aug. 30, 2017).
2

Complaint, Docket Entry No. 1, at 3-4.
2

Assistant District Attorney Claire Connors, and the Honorable Michael J. Wilkinson,
who presided over Marshall’s trial.3
Marshall explains that Hanes, who actually shot and killed Sandoval during the
robbery, agreed to plead guilty to the lesser charge of murder and received a 25-year
sentence.4 Marshall alleges that Johnson was “swayed” by Hill and Connors to not
call Hanes as a witness on Marshall’s behalf.5 By depriving him of Hanes’s
testimony, Marshall contends that Johnson and Hill conspired with Connors and
Wilkinson to secure his conviction in violation of his federal constitutional rights.6
Marshall seeks monetary damages as well as declaratory and injunctive relief under
42 U.S.C. § 1983 for the constitutional violations that resulted in his conviction.7
II.

DISCUSSION
The complaint fails to state a claim and must be dismissed for several reasons.

Marshall’s conclusory allegations of conspiracy are insufficient to demonstrate
liability on the part of Judge Wilkinson, who is entitled to absolute immunity from
claims arising out of acts performed in the exercise of their judicial functions. See
3

Id.

4

Id.

5

Id.

6

Id.

7

Id.
3

Stump v. Sparkman, 435 U.S. 349, 355 (1978). It is also well established that
prosecutors such as Claire Connors are entitled to absolute immunity from civil rights
claims for actions taken in the scope of their duties in initiating and pursuing a
criminal prosecution. See Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citing
Burns v. Reed, 500 U.S. 478, 492 (1991)); see also Imbler v. Pachtman, 424 U.S. 409,
431 (1976) (holding that prosecutors are absolutely immune from a civil suit for
damages for initiating a prosecution and in presenting the state’s case). Likewise,
criminal defense attorneys, even those such as Johnson and Hill who are appointed by
the state to represent indigent defendants, are not state actors who can be held liable
under 42 U.S.C. § 1983. See Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996)
(citing Polk County v. Dodson, 454 U.S. 312, 324-25 (1981); Mills v. Criminal Dist.
Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988)).
More importantly, Marshall cannot recover damages under 42 U.S.C. § 1983
based on his allegation that his conviction was obtained unlawfully because his claim
is barred by Supreme Court precedent. To recover damages based on allegations of
“unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a [civil rights]
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
4

such determinations, or called into question by a federal court’s issuance of a writ of
habeas corpus [under] 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). A claim for damages that bears a relationship to a conviction or sentence that
has not been so invalidated is not cognizable under 42 U.S.C. § 1983. Id. Therefore,
if a judgment in favor of the plaintiff would “necessarily imply the invalidity of his
conviction or sentence,” then the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated. Id.
As noted above, Marshall’s conviction was affirmed on appeal and he remains
incarcerated pursuant to the judgment in Harris County cause number 833880.
Marshall does not allege or show his sentence has been invalidated or otherwise set
aside by an authorized state tribunal or by a federal habeas corpus proceeding under
28 U.S.C. § 2254. Absent a showing that the disputed conviction has been invalidated
or set aside, the rule in Heck precludes any claim for damages. Any claim for
declaratory or injunctive relief is likewise barred by the rule in Heck. See Clarke v.
Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998). It follows that Marshall’s civil rights
claims are not cognizable under 42 U.S.C. § 1983 at this time and that his complaint
must be dismissed with prejudice. See Johnson v. McElveen, 101 F.3d 423, 424 (5th
Cir. 1996) (explaining that claims barred by Heck are “dismissed with prejudice to
their being asserted again until the Heck conditions are met”).
5

III.

CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1.

The plaintiff’s complaint is DISMISSED with prejudice under 28 U.S.C.
§ 1915(e)(2)(B) failure to state a claim.

2.

The dismissal will count as a strike for purposes of 28 U.S.C. § 1915(g).

The Clerk is directed to provide a copy of this order to the plaintiff. The
Clerk will also provide a copy of this order by regular mail, facsimile
transmission, or e-mail to: (1) the TDCJ - Office of the General Counsel, P.O.
Box 13084, Austin, Texas, 78711, Fax Number [phone]; and (2) the
Manager of the Three Strikes List at [e-mail].
SIGNED at Houston, Texas, on September 11

, 2017.

NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

6