Dodson v. Hildreth

Filing 4

MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, 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

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

VERTEN DODSON III,
TDCJ #01485604,
Plaintiff,
v.

DUKE HILDRETH,
Defendant.

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March 23, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-0904

MEMORANDUM OPINION AND ORDER

The

plaintiff,

Verten

Dodson

III

(TDCJ

#01485604),

is

currently incarcerated by the Texas Department of Criminal Justice
- Correctional Institutions Division ("TDCJ") at the Estelle Unit
in Huntsville.
under 42 U.S.C.

Dodson has filed a Prisoner Civil Rights Complaint
§

1983 ("Complaint")

his former criminal defense counsel,

(Docket Entry No. 1) against
Duke Hildreth.

Dodson has

also filed an Application to Proceed In Forma Pauperis

(Docket

Entry No. 2), requesting leave to proceed without prepayment of the
filing fee.

Because Dodson 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."

28 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

Dodson is presently serving a 30-year prison sentence that he
received as the result of a murder conviction entered against him
in Travis County Cause No.
verdict was
No.

affirmed on direct

03-08-00108-CR,

2008, no pet.)
federal

unsuccessful.

appeal.

2008 WL 4823178

(unpublished).

habeas

WL 2582725

D-1-DC-07-300805. 1 The jury's guilty

corpus

See Dodson v.

State,

(Tex. App.- Austin Nov.

7,

Dodson's applications for state and

relief

See Dodson v.

from
Thaler,

(W.D. Tex. June 28,

that

conviction

Civil No.

have

been

A-10-099,

2011

2011); see also Ex parte Dodson,

Writ No. 72,525-08 (Tex. Crim. App. June 12, 2013)

(barring Dodson

from filing any further applications because of his repeated abuse
of the writ) .
Dodson now sues Duke Hildreth, who served as Dodson's criminal
defense counsel when his underlying murder conviction was entered. 2
Dodson contends that Hildreth violated his constitutional rights
under

the

Sixth

Amendment

assistance of counsel. 3

by

failing

Invoking 42 U.S.C.

to
§

provide

effective

1983, Dodson seeks

$10 million in damages for his wrongful conviction. 4

1

See
Texas
Department
of
Information Details, located at:
(last visited March 23, 2018).

Criminal
Justice,
Offender
http://offender.tdcj.texas.gov

2

Complaint, Docket Entry No. 1, p. 4.

3

Id. at 3-4.

-2-

II.

Discussion

"To state a claim under

1983, a plaintiff must (1) allege

§

a violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law."
Dallas

Indep.

Sch.

(citations omitted).

Dist.,

28

F.3d

521,

525

(5th

Lefall v.
Cir.

1994)

In other words, the alleged violation "must

be caused by the exercise of some right or privilege created by the
State or by a rule of conduct imposed by the State or by a person
for whom the State is responsible."
102 S. Ct. 2744, 2753 (1982).

Lugar v. Edmundson Oil Co.,

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.

Dodson sues

the

defendant

for actions

taken while he was

acting as Dodson's criminal defense attorney.
attorneys,

even court-appointed ones,

purposes of a suit under 42 U.S.C.
98 F.3d 868, 873 (5th Cir. 1996)

§

Criminal defense

are not state actors for

1983.

See Hudson v. Hughes,

(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 fails to state a claim upon which relief can be
-3-

granted as a matter of law.

See Hudson, 98 F.3d at 873; see also

Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995).
Alternatively,

Dodson cannot obtain money 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," without first proving that the
challenged 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 of habeas corpus
[under] 28 U.S.C.

§

2254."

Heck v. Humphrey, 114 S. Ct. 2364, 2372

(1994).
It is evident that the challenged conviction has not been set
aside or invalidated.
tions

of

Court records confirm that Dodson's allega-

ineffective-assistance

were

addressed

at

length

See Dodson v. Thaler,

rejected on federal habeas review.

and

Civil

No. A-10-099, 2011 WL 2582725, at *7-10 (W.D. Tex. June 28, 2011).
Because Dodson has not demonstrated that his conviction has been
invalidated, his civil rights claims are not cognizable under 42
U.S.C.
See

§

1983 and his Complaint must be dismissed with prejudice.

Johnson

(explaining

v.

McElveen,

101

claims

barred

that

F.3d
by

423,

424

(5th

Cir.

Heck

are

"dismissed

1996)
with

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.

§

1915A(b).
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III.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

The Application to Proceed In Forma Pauperis filed
by the plaintiff, Verten Dodson III, (Docket Entry
No. 2) is GRANTED.

2.

The TDCJ Inmate Trust Fund is ORDERED to deduct
funds from the inmate trust account of Verten
Dodson III (TDCJ #01485604) and forward them to the
Clerk on a regular basis, in compliance with the
provisions of 28 U.S.C. § 1915(b), until the entire
filing fee ($350.00) has been paid.

3.

Dodson's Prisoner Civil Rights Complaint 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

TDCJ - Office of the General Counsel, P.O. Box 13084, Austin, Texas
78711, Fax Number 512-936-2159; (2) the Inmate Trust Fund, P.O. Box
629, Huntsville, Texas 77342-0629, fax: [phone]; and (3) the
Three Strikes List at [e-mail].
SIGNED at Houston, Texas, on this 23rd day of March, 2018.

UNITED

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DISTRICT JUDGE