Dowdell v. Johnson
MEMORANDUM OPINION AND ORDER granting 1 Application to Proceed without Prepayment of Filing Fee, dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
October 27, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RAAMOND ONDRE DOWDELL,
JUDGE ROBERT JOHNSON,
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3058
MEMORANDUM OPINION AND ORDER
The plaintiff, Raamond Ondre Dowdell, is currently in custody
at the Harris County Jail.
Dowdell has filed a Prisoner Complaint
for Violation of Civil Rights under 42 U.S.C.
Dowdell has submitted a "Financial Affidavit" (Docket
Entry No.2), requesting leave to proceed without prepayment of the
Because Dowdell is incarcerated, the court is required
to scrutinize the claims and dismiss the Complaint, in whole or in
part, if it determines that the Complaint "is frivolous, malicious,
or fails to state a claim upon which relief may be granted" or
"seeks monetary relief from a defendant who is immune from such
2 8 U. S.C.
1915A (b) .
After considering all of the
pleadings the court concludes that this case must be dismissed for
the reasons explained below.
Dowdell is presently in custody at the Harris County Jail
pending a probation revocation proceeding in the 177th District
Court of Harris County, Texas. 1
Dowdell sues the presiding judge,
Robert Johnson, who previously served as Dowdell's defense counsel
when his underlying conviction was entered. 2
Dowdell contends that
his underlying conviction was "wrongful" because Johnson failed to
defend him "to the best of his ability" and failed to tell Dowdell
about a proposed plea deal for two years in prison. 3
Invoking 42 U.S.C. § 1983,
Dowdell seeks injunctive
relief and $1.5 million in damages for his wrongful conviction. 5
to state a
claim for relief under 42 U.S. C.
1983, which affords a remedy against state actors only.
"the deprivation must be caused by the exercise of some
right or privilege created by the State or by a rule of conduct
Complaint, Docket Entry No. 1, p. 4; Exhibit, Motion to
Adjudicate Guilt, State v. Dowdell, Cause No. 1484047, Docket Entry
No. 1, p. 14.
Complaint, Docket Entry No. 1, p. 12.
Public records clarify that Dowdell was placed on
deferred adjudication probation on or about November 5, 2015. See
Harris County District Clerk's Office website,
http://www.hcdistrictclerk.com (last visited Oct. 26, 2017).
Complaint, Docket Entry No. 1, p. 5.
Lugar v. Edmundson Oil Co., 102 S. Ct. 2744, 2753
This means that "the party charged with the deprivation
must be a person who may fairly be said to be a state actor," that
is, one who is in fact a state official, one who "has acted with or
has obtained significant aid from state officials," or one whose
"conduct is otherwise chargeable to the State."
Dowdell sues the defendant for actions taken while he was
acting as Dowdell's retained criminal defense attorney. 6
defense attorneys, even court-appointed ones, are not state actors
for purposes of a suit under 42 U.S.C.
98 F.3d 868,
See Hudson v.
(citing Polk Cty.
Dodson, 454 U.S. 312, 324-25 (1981); Mills v. Criminal Dist. Court
No. 3, 837 F.2d 677, 679 (5th Cir. 1988)).
Because a civil rights
complaint against a criminal defense attorney does not allege state
such a complaint against counsel fails to state a claim
upon which relief can be granted as a matter of law.
Dowdell also implies that Judge Johnson, as Dowdell's former
criminal defense counsel, has a conflict of interest that precludes
him from presiding over his revocation proceeding. See Complaint,
Docket Entry No. 1, pp. 4, 12. To the extent that this allegation
concerns proceedings that are currently pending against him, the
doctrine of abstention announced in Younger v. Harris, 91 S. Ct.
746, 751 (1971), prohibits interference by a federal court with a
pending state criminal prosecution. See DeSpain v. Johnston, 731
F.2d 1171, 1176 (5th Cir. 1984) ("The Younger doctrine establishes
a presumption that the federal courts should abstain in cases in
which a state criminal proceeding is pending."). Accordingly, the
court does not address these allegations further.
98 F.3d at 873; see also Biliski v. Harborth, 55 F.3d 160, 162 (5th
money damages based on allegations of "unconstitutional conviction
without first proving that the challenged conviction or sentence
has been "reversed on direct appeal, expunged by executive order,
invalid by a
issuance of a writ of habeas corpus
Heck v. Humphrey, 114
28 U.S. C.
s. Ct. 2364, 2372 (1994).
conviction has not been set aside or invalidated.
does not demonstrate that his conviction have been invalidated, his
civil rights claims are not cognizable under 42 U.S.C.
his Complaint must be dismissed with prejudice.
McElveen, 101 F.3d 423, 424 (5th Cir. 1996)
See Johnson v.
(explaining that claims
asserted again until the Heck conditions are met"). Accordingly,
this case will be dismissed for failure to state a claim upon which
relief may be granted for purposes of 28 U.S.C.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The application for leave
prepayment of the filing fee
to proceed without
(Docket Entry No. 2)
Officials at the Harris County Jail are directed to
deduct the filing fee for indigent litigants
($350.00) from the Inmate Trust Fund account of
Raamond Ondre Dowdell (SPN #01141773) in periodic
installments pursuant to 28 U.S.C. § 1915(b), and
forward those funds to the Clerk of Court until the
entire fee is paid.
Dowdell's Prisoner Complaint for Violation of Civil
Rights under 42 U.S.C. § 1983 (Docket Entry No. 1)
is DISMISSED with prejudice.
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 Memorandum
Opinion and Order to the plaintiff.
The Clerk will also provide a
copy of this order by regular mail or electronic mail to:
Harris County Jail Inmate Trust Fund, Attn: Sergeant Tom Katz, 1200
Baker Street, Houston, Texas, 77002, phone:
SIGNED at Houston, Texas, on this21_th day of~~"' 2017.
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