Max-George v. Houston Police Department et al

Filing 19

MEMORANDUM OPINION AND ORDER DENYING 17 MOTION for Recusal, DENYING 18 MOTION Serve Process. Plaintiff's request for preliminary injunctive relief is DENIED. Plaintiff's claims against D.W. Duval are DISMISSED WITH PREJUDICE to their being asserted again until the Heck conditions are met. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CECIL WALTER MAX-GEORGE,
Plaintiff,
v.
HOUSTON POLICE DEPARTMENT, ET AL.,
Defendants.

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April 11, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2264

MEMORANDUM OPINION AND ORDER
State inmate Cecil Walter Max-George filed this pro se section 1983 lawsuit against
the Houston Police Department and four police officers in their individual capacity for the
officers’ alleged use of excessive force during his arrest. The Court has reviewed the
complaint and pending motions, and orders as follows.
Preliminary Injunctive Relief
Plaintiff seeks an immediate injunction “against the Defendants from continuing a
practice or pattern of racially profiling Black Men for enforcement at rates twice as high as
their population,” and “against the Defendants from continuing the practice, custom, or
unwritten policy of tolerating and encouraging excessive use of force against Black men, and
HPD’s failure to investigate and discipline their officers, when there is no apparent threat to
the officer.” (Docket Entry No. 1, p. 13.) The Court construes this request for an
“immediate injunction” as a request for temporary or preliminary injunctive relief.

To obtain a preliminary injunction, a movant must establish that: (1) he is likely to
succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public
interest. Tex. Midstream Gas Servs., LLC. v. City of Grand Prairie, 608 F.3d 200, 206 (5th
Cir. 2010). The party seeking the preliminary injunction bears the burden of persuasion on
all four requirements. Bluefield Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250,
253 (5th Cir. 2009).
Plaintiff states in his complaint that on July 20, 2015, defendants stopped him in his
vehicle on an open warrant for his arrest. The officers informed plaintiff that he was under
arrest, but he responded that he would need to call his parole officer and verify the warrant
first. Plaintiff refused to exit his vehicle, and the officers were compelled to enter the vehicle
in order to remove him. Plaintiff’s allegations in his complaint clearly show that he resisted
the officer’s efforts to remove him. He admits to“holding on to the inside of the driver’s
headrest, so as not to be dragged out feet first,” and telling one of the officers to “get your
whiteass [sic] away from my window.” Plaintiff complains that the officers struck him and
“tasered” him when he tried to put his legs under his body, and he was ordered to stop
resisting.
The officers were able to remove plaintiff from the car and placed him handcuffed in
a patrol car. He states that an ambulance appeared at the scene, but that he did not get to
speak with emergency personnel regarding his injuries. Plaintiff alleges that he sustained

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bruising, a bloody nose and lip, a cut to his ear, scrapes on his back, and “taser marks.” He
was taken to the jail and given medications by medical staff.
Criminal charges were brought against plaintiff for his assaulting and causing bodily
injury to police officer D.W. Duval during the arrest and retaliating against him. A jury
subsequently found plaintiff guilty of assault of a public servant with bodily injury and
retaliation, and the court sentenced him to fifteen years’ incarceration. Plaintiff does not
allege that the conviction has been reversed, set aside, or otherwise judicially called into
question. Plaintiff names Duval as a defendant in this lawsuit.
Plaintiff does not meet his burden of proof for warranting preliminary injunctive
relief. Moreover, the requested injunctive relief greatly exceeds any relief to which plaintiff
might be entitled. Plaintiff acknowledges that he was stopped by the police officers under
an open warrant for his arrest, and that he verbally and physically refused to cooperate with
their instructions to exit his vehicle. His complaint further shows that he resisted their efforts
to remove him from the car, and that the officers had to forcibly remove him. Nothing in the
complaint shows that plaintiff was “racially profiled” by the police, or that the officers
tolerated or encouraged use of excess force and the police department failed to investigate
the officer’s actions or impose disciplinary actions as necessary. To the contrary, plaintiff
acknowledges that he was found guilty of assaulting Duval and causing him bodily injury
during the arrest. Plaintiff further acknowledges that the police department opened an
investigation based on plaintiff’s complaints of excessive force. Plaintiff’s allegation that

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he did not receive any written results of the investigation does not warrant a preliminary
injunction of the nature and extent requested here. Moreover, plaintiff has been convicted,
sentenced, and imprisoned; his current circumstances evince no need for the requested
preliminary injunctive relief at this time.
Plaintiff’s pleadings fail to show that (1) he is likely to succeed on the merits; (2) he
is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in his favor; and (4) an injunction is in the public interest. For these reasons,
preliminary injunctive relief is DENIED.
Claims for Monetary Relief Against D.W. Duval
Plaintiff seeks monetary damages and declarative relief against Duval in his individual
capacity. Plaintiff claims that Duval used excessive force during his arrest. However,
plaintiff was convicted of assaulting Duval during the arrest and causing him bodily injury.
It is well-settled under Heck v. Humphrey, 512 U.S. 477, 487 (1994), that when a
criminal defendant brings a section 1983 case against his arresting officers, the district court
must first consider whether a judgment in favor of the claimant would necessarily imply the
invalidity of the underlying criminal conviction. If so, the claim is barred unless the claimant
proves 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.” Id. If
plaintiff does not meet that burden, then the court must dismiss the claim. See Johnson v.

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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”).
A judgment against Duval in favor of plaintiff for use of excessive force during his
arrest would necessarily imply the invalidity of plaintiff’s conviction for assaulting Duval
and causing him bodily injury during the arrest. Plaintiff does not allege, and public court
records do not show, that plaintiff’s conviction has been reversed, expunged, declared
invalid, or otherwise called into question by a federal court. Accordingly, plaintiff’s claims
against Duval are barred by Heck at this time and must be dismissed.
Pending Motions
Plaintiff’s motion to recuse the undersigned judge under 28 U.S.C. § 455(b) (Docket
Entry No. 17) is DENIED. Plaintiff’s claims of personal bias and lack of impartiality on the
part of this Court are conclusory and unsupported. Moreover, this Court did not knowingly
interfere with plaintiff’s other civil case, Max-George v. The Hon. Justices of the Texas
Court of Criminal Appeals, C.A. No. H-17-3795 (S.D. Tex.). To the contrary, that case was
dismissed by Chief United States District Judge Lee H. Rosenthal on January 12, 2018, for
plaintiff’s failure to state a viable claim. Nor does plaintiff present any extrajudicial sources
that call into question the undersigned’s impartiality as to this lawsuit. In short, no
meritorious grounds for recusal are shown.

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Plaintiff’s motion for the Court to serve process on the defendants (Docket Entry No.
18) is DENIED at this time, subject to the Court’s determination that plaintiff has pleaded
one or more colorable claims for relief that should be allowed to go forward.
Conclusion
The Court ORDERS as follows:
(1)

Plaintiff’s request for preliminary injunctive relief is DENIED.

(2)

Plaintiff’s claims against D.W. Duval are DISMISSED WITH PREJUDICE
to their being asserted again until the Heck conditions are met.

(3)

Plaintiff’s motions for recusal (Docket Entry No.17) and for the Court to serve
process (Docket Entry No. 18) are DENIED.

This is an INTERLOCUTORY ORDER.
Signed at Houston, Texas on April 11, 2018.

Gray H. Miller
United States District Judge

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