Agbonifo v. Boyden

Filing 7

MEMORANDUM ON DISMISSAL entered. The action filed by Michael Ojegba Agbonifo is premature. The Clerk must stay and close this case for administrative purposes until further notice. Agbonifo must file a "Motion to Reinstate" this case, if ap propriate, within thirty days from the date that the federal criminal case is completed. Agbonifo's motion to proceed in forma pauperis, (Docket Entry No.2), is DENIED without prejudice to reconsideration upon reinstatement of this action. (Signed by Judge Vanessa D Gilmore) 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
MICHAEL OJEGBA AGBONIFO,
(Reg. #14675479)
Plaintiff,
vs.
MATTHEWS. BOYDEN,
Defendant.

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July 28, 2017
David J. Bradley, Clerk

CIVILACTIONH-17-1872

MEMORANDUM ON DISMISSAL

Michael Ojegba Agbonifo, a former inmate of the Joe Corley Detention Facility, sued in June
2017, alleging civil rights violations resulting from a denial of due process. Agbonifo, proceeding
prose and in forma pauperis, sued MatthewS. Boyden, United States Postal Inspector.
The threshold issue is whether Agbonifo's claims are premature. The court concludes that
Agbonifo's lawsuit should be stayed and administratively closed until further notice.
Agbonifo states that on September 16, 2016, officers with the Houston Police Department
arrested him. Agbonifo was initially placed in an HPD van. Boyden removed Agbonifo from the
van and placed him the front passenger seat of his gray SUV. Agbonifo alleges that Boyden drove
Agbonifo to Agbonifo's apartment. Agbonifo asserts that Boyden sexually assaulted him and
conducted an illegal search of his apartment. Agbonifo claims that Boyden then drove Agbonifo to
an office where he coerced Agbonifo to sign a document in which he consented to the search of his
apartment.
Agbonifo asserts that he is being illegally detained pursuant to an indictment in Criminal
Case Number 4:16-00462-1, in which he was charged with wire fraud, conspiracy to commit wire
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fraud, aggravated identity theft, passport fraud, and visa fraud. In a lengthy statement attached to
his complaint, Agbonifo complains that evidence was fabricated and made the basis of the false
charges against him. Court records show that on April28, 2017, this court granted an agreed motion
to commit Agbonifo to the custody of the Attorney General for a reasonable time until Agbonifo
regains the capacity to litigate this criminal action.
A federal court has the authority to dismiss a complaint in which the plaintiff is proceeding

in forma pauperis before service if the court determines that it is frivolous. 28 U.S.C.
§ 1915( e)(2)(B)(i). 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." Davis v. Scott, 157 F.3d 1003, 1005
(5thCir. 1998)(quotingMcCormickv. Stalder, 105 F.3d 1059,1061 (5thCir. 1997)).
[To recover damages for an 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 determinations, or called into question by a
federal court's issuance of a writ ofhabeas 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.

!d. 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. !d.

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Although the Supreme Court's decision in Heck concerned a civil action for monetary
damages, the United States Court of Appeals for the Fifth Circuit has also applied Heck in cases in
which the plaintiff seeks injunctive relief. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en
bane) (citing Edwards v. Balisok, 520 U.S. 641 (1997)).
Agbonifo has been charged in this court with wire fraud, conspiracy to commit wire fraud,
aggravated identity theft, passport fraud, and visa fraud. Agbonifo' s allegations of an illegal search
and fabricated evidence, would, iftrue, necessarily implicate the validity ofthese charges and any
potential convictions. See Hudson v. Hughes, 98 F.3d 868, 872-73 (5th Cir. 1996) (holding that
allegations of excessive force and false arrest are not cognizable under the doctrine in Heck if a
successful civil rights claim would call into question the validity of the plaintiffs conviction); see

also Sappington v. Bartee, 195 F .3d 234 (5th Cir. 1999) (holding that Heck bars a civil rights claim
for excessive force and false arrest where the plaintiff has been convicted of assaulting an officer).
Several circuits have held that Heck bars "damage claims which, if successful, would necessarily
imply the invalidity of a potential conviction on a pending criminal charge." Snodderly v. R. UF.F.

Drug Enforcement Task Force, 239 F.3d 892, 898 n.8 (7th Cir. 2001); Smith v. Holtz, 87 F.3d 108,
110 (3rd Cir. 1996) (holding that a claim challenging the validity of a future conviction raises the
same concerns as a claim challenging the legality of a conviction and, as a result, "does not accrue
so long as the potential for a judgment in the pending criminal prosecution continues to exist."). 1
In considering this issue, the Fifth Circuit reasoned:

Other circuit courts have relied on Smith in extending Heck to pre-conviction criminal charges. See
Shamaeizadeh v. Cunigan, 182 F.3d 391, 397 (6th Cir. 1999); Covington v. N.Y. C., 171 F.3d 117, 124 (2nd
Cir. 1999); Washington v. Summerville, 127 F.3d 552,555 (7th Cir. 1997).
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The record does not clearly reflect that a successful attack on
Mackey's arrests will implicate the validity of his confinement. It is
not clear whether or not Mackey has been tried or convicted. When
his suit was filed, it appears that he was confined pursuant to the
March 21 indictment, the validity of which would not necessarily be
implicated by any illegality in earlier arrests. If Mackey is tried and
convicted and in his contested criminal case no evidence is presented
resulting directly or indirectly from any of his arrests, it is difficult to
see how any illegality in any ofhis arrests could be inconsistent with
his conviction. On the other hand, if he is convicted and evidence is
presented by the prosecution at his criminal trial which is a direct or
indirect product of one or more of his arrests, then his section 1983
damage claims challenging the validity of his arrests would appear to
undermine the validity ofhis conviction and hence be barred by Heck.
Of course, in any event any equitable relief in the nature of release
from confinement would be barred by Preiser v. Rodriguez, 411 U.S.
475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).
At this point it is simply premature to determine whether or not
Mackey's damage claims are barred under Heck. Accordingly, the
district court erred in dismissing the claims on the basis of Heck. The
court may--indeed should--stay proceedings in the section 1983 case
until the pending criminal case has run its course, as until that time it
may be difficult to determine the relation, if any, between the two.
Mackey v. Dickson, 47 F.3d 744,746 (5th Cir. 1995).
In Brown v. Taylor, 139 F. App'x 613,2005 WL 1691376 (5th Cir. 2005), the Fifth Circuit
stated, in an unpublished opinion, that to the extent that Brown's allegations concerned pending
criminal charges, the district court's dismissal of his civil-rights complaint under Heck was
erroneous. Where it remained unclear whether Brown had been tried or convicted on those charges,
the Fifth Circuit stated that the district court should have stayed the instant action until the pending
criminal case against Brown had run its course./d. (citing Mackey v. Dickson, 47 F.3d 744, 746 (5th

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Cir. 1995)). 2
The Supreme Court has explained that if a plaintiff files a false arrest claim before he has
been convicted (or files any other claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power ofthe district court, and in accord with common
practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.
Wallace v. Kat a, 549 U.S. 384, 393-94 (2007). If the plaintiff is ultimately convicted, and if the

stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil
action will proceed, absent some other bar to suit. Wallace, 549 U.S. at 394 (citing Edwards v.
Balisok, 520 U.S. 641,649 (1997)); Heck, 512 U.S. at 487.

Because court records reflect that Agbonifo' s criminal case remains pending, the court must
stay and close this civil case until his federal criminal proceedings are completed. The action filed
by Michael Ojegba Agbonifo (Reg. #14675479) is premature. The Clerk must stay and close this
case for administrative purposes until further notice. Agbonifo must file a "Motion to Reinstate" this
case, if appropriate, within thirty days from the date that the federal criminal case is completed.
Agbonifo's motion to proceed in forma pauperis, (Docket Entry No.2), is DENIED without
prejudice to reconsideration upon reinstatement of this action.
SIGNED at Houston, Texas,

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on~.
VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

See also Busick v. City of Madison, Miss., 90 F. App'x 713, 713-714 (5th Cir. 2004) (where it is
impossible to determine whether a plaintiffs civil claims relating to his arrest and criminal prosecution
necessarily implicate the validity of any conviction or sentence that plaintiff has received or might receive
because of ongoing criminal proceedings, the district court should have stayed the civil proceedings pending
the resolution of the criminal charges against plaintiff).
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