Dowdell v. Johnson

Filing 5

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)

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United States District Court Southern District of Texas ENTERED October 27, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION RAAMOND ONDRE DOWDELL, SPN #01141773, § § § § § § § § § § Plaintiff, v. JUDGE ROBERT JOHNSON, Defendant. 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. (Docket Entry conviction. No. 1), challenging a § 1983 ("Complaint") state court criminal Dowdell has submitted a "Financial Affidavit" (Docket Entry No.2), requesting leave to proceed without prepayment of the filing fee. 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 relief." 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. I. Background 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 Dowdell pled probation. 4 guilty in exchange for Invoking 42 U.S.C. § 1983, a term of five Instead, years' Dowdell seeks injunctive relief and $1.5 million in damages for his wrongful conviction. 5 II. Dowdell fails § Discussion to state a claim for relief under 42 U.S. C. 1983, which affords a remedy against state actors only. words, In other "the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct 1 Complaint, Docket Entry No. 1, p. 4; Exhibit, Motion to Adjudicate Guilt, State v. Dowdell, Cause No. 1484047, Docket Entry No. 1, p. 14. 2 Complaint, Docket Entry No. 1, p. 12. 4 Id. 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, located at: (last visited Oct. 26, 2017). 5 Complaint, Docket Entry No. 1, p. 5. -2- imposed by the responsible." (1982). State or by a person for whom the State is 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." Id. Dowdell sues the defendant for actions taken while he was acting as Dowdell's retained criminal defense attorney. 6 Criminal defense attorneys, even court-appointed ones, are not state actors for purposes of a suit under 42 U.S.C. Hughes, 98 F.3d 868, 873 (5th Cir. § 1996) 1983. See Hudson v. (citing Polk Cty. v. 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 action, such a complaint against counsel fails to state a claim upon which relief can be granted as a matter of law. 6 See Hudson, 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. -3- 98 F.3d at 873; see also Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995). Alternatively, Dowdell cannot obtain injunctive relief or money damages based on allegations of "unconstitutional conviction or imprisonment, unlawfulness or would for other render a harm caused conviction or by actions sentence whose invalid," without first proving that the challenged conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a determinations, or state called tribunal into question issuance of a writ of habeas corpus Heck v. Humphrey, 114 It is evident authorized by [under] a to make federal 28 U.S. C. such court's § 2254." s. Ct. 2364, 2372 (1994). from the pleadings that the conviction has not been set aside or invalidated. challenged Because Dowdell 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) barred by Heck are "dismissed with § 1983 and See Johnson v. (explaining that claims prejudice to their being 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. III. § 1915A(b). Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The application for leave prepayment of the filing fee is GRANTED. -4- to proceed without (Docket Entry No. 2) 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. 3. Dowdell's Prisoner Complaint for Violation of Civil Rights under 42 U.S.C. § 1983 (Docket Entry No. 1) is DISMISSED with prejudice. 4. 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: (1) the Harris County Jail Inmate Trust Fund, Attn: Sergeant Tom Katz, 1200 Baker Street, Houston, Texas, 77002, phone: (713) 713-755-4546; Strikes and (2) the Three 755-8436, fax: List at SIGNED at Houston, Texas, on this21_th day of~~"' 2017. UNITED -5- LAKE DISTRICT JUDGE

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