Calderon v. Brown et al

Filing 6

MEMORANDUM OPINION AND ORDER granting 2 MOTION/APPLICATION to Proceed In Forma Pauperis. The complaint (Dkt. 1) filed by Calderon is DISMISSED under 28 U.S.C.§1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon whic h relief may be granted. His claims for injunctive relief are dismissed without prejudice. Any claims for monetary damages are dismissed with prejudice to his claims being asserted again until the Heck conditions are met. All pending motions, if any, are DENIED as moot. Email sent to Manager of Three Strikes List. Case terminated on November 26, 2024.(Signed by Judge George C Hanks, Jr) Parties notified. (jm4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
§
Plaintiff,
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§
VS.
§
§
HON. JEFFREY VINCENT BROWN, et al,, §
§
Defendants.
§

November 26, 2024
Nathan Ochsner, Clerk

AGUSTIN CALDERON,
TDCJ # 02200225,

CIVIL ACTION NO. 4:24-4122

MEMORANDUM OPINION AND ORDER
Plaintiff Agustin Calderon, an inmate in the Texas Department of Criminal Justice–
Correctional Institutions Division (TDCJ), claims in this civil-rights suit that the Hon.
Jeffrey Vincent Brown and Bobby Lumpkin, director of TDCJ, are violating his rights in
an ongoing habeas corpus action. This case is governed by the Prisoner Litigation Reform
Act (PLRA), which requires prisoners who proceed in forma pauperis to pay an initial
partial filing fee and then to pay by installment the full balance of the $350 filing fee for
indigent litigants. 28 U.S.C. § 1915(b). Based on the certified inmate trust account
statement (Dkt. 3) provided by the plaintiff, the application for leave to proceed in forma
pauperis (Dkt. 2) is GRANTED. The plaintiff is not assessed an initial partial filing fee
because his application shows he lacks the requisite funds. However, the plaintiff will be
required to pay the full $350 filing fee in periodic installments as required by 28 U.S.C. §
1915(b).

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The PLRA additionally requires the Court to scrutinize the pleadings and dismiss
the complaint in whole or in part if it is frivolous, malicious, 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. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). After reviewing all
of the pleadings as required, the Court concludes that this case must be DISMISSED for
the reasons explained below.
I.

BACKGROUND
Calderon brings his civil-rights claims against Hon. Jeffrey Vincent Brown, a

district judge for the Southern District of Texas, and Bobby Lumpkin, director of TDCJ.
In June 2023, Calderon filed a petition for habeas corpus in the Southern District of Texas,
which currently is pending before Judge Brown in the Galveston Division. See Calderon
v. Lumpkin, Civil Action No. 3:23-0324 (S.D. Tex.). The petition challenges Calderon’s
conviction in Galveston County in 2018.1 Lumpkin, as respondent, filed an answer on
December 21, 2023. Calderon has not filed a timely response.
In this suit, Calderon complains that Judge Brown is not considering his habeas
petition or his circumstances, which include poverty and a low level of education, and is
permitting Lumpkin to disobey court orders. He also states that Judge Brown has denied

According to TDCJ’s public website, Calderon was sentenced to life in prison in 2018 in
Galveston County based on a conviction for capital murder. See Inmate Information Search,
available at https://inmate.tdcj.texas.gov/InmateSearch (last visited Nov. 15, 2024). His
conviction was affirmed on appeal, the Court of Criminal Appeals denied his petition for
discretionary review, and the United States Supreme Court denied his petition for a writ of
certiorari. Calderon v. State, No. 01-18-00422-CR, 2019 WL 6904297 (Tex. App.–Hou. [1st
Dist.] Dec. 19, 2019, pet. ref'd), cert. denied, 141 S. Ct. 1420 (2021).
1

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his motions for discovery and appointed counsel. He complains that Lumpkin has failed
to consider his petition and circumstances and, additionally, has improperly argued that
Calderon’s actual-innocence claim is not cognizable on federal habeas review.
As relief for his claims, Calderon seeks discovery; a declaration that Judge Brown
and Lumpkin have violated his federal rights; an injunction ordering Judge Brown and
Lumpkin to settle the dispute; and a “gateway” for his seven habeas claims in Civil Action
No. 3:23-0324; among other relief (Dkt. 1, at 8-9, 14).
II.

THE PLRA AND PRO SE PLEADINGS
Because the plaintiff is a prisoner proceeding in forma pauperis, the Court is

required by the PLRA to screen the case and dismiss the complaint at any time if it
determines that the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). A district court may dismiss a
claim as frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). A claim lacks an arguable basis in law “if it is based on an
indisputably meritless legal theory.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013) (cleaned up). It lacks an arguable basis in fact “if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are clearly
baseless.” Id. (cleaned up).
A dismissal for failure to state a claim is governed by the same standard as a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Newsome v.
EEOC, 301 F.3d 227, 231 (5th Cir. 2002). Under this standard, the Court “construes the
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complaint liberally in favor of the plaintiff,” “takes all facts pleaded in the complaint as
true,” and considers whether “with every doubt resolved on [the plaintiff’s] behalf, the
complaint states any valid claim for relief.” Harrington v. State Farm Fire & Cas. Co.,
563 F.3d 141, 147 (5th Cir. 2009) (cleaned up).
In reviewing the pleadings, the Court is mindful of the fact that the plaintiff proceeds
pro se. Complaints filed by pro se litigants are entitled to a liberal construction and,
“however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). Even under
this lenient standard a pro se plaintiff must allege more than “‘labels and conclusions’ or a
‘formulaic recitation of the elements of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Additionally, regardless of how well-pleaded the factual
allegations may be, they must demonstrate that the plaintiff is entitled to relief under a valid
legal theory. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005).
III.

DISCUSSION
Calderon brings his claims under 42 U.S.C. § 1983, which provides a vehicle for a

claim against a person “acting under color of state law,” such as a prison official, for a
constitutional violation. See Pratt v. Harris Cty., Tex., 822 F.3d 174, 180 (5th Cir. 2016).
He alleges that Judge Brown and Lumpkin are violating his civil rights by their actions or
inactions during the habeas litigation.
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Under Heck v. Humphrey, 512 U.S. 477 (1994), a § 1983 claim for damages that
bears a relationship to a conviction or sentence is not cognizable unless the conviction or
sentence has been invalidated. To prevail based on allegations of “harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,” a civil-rights 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 of habeas
corpus [under] 28 U.S.C. § 2254.” Id. at 486-87. If a judgment in favor of a civil-rights
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.” Id. at 487; see Hainze v. Richards, 207 F.3d 795,
798 (5th Cir. 2000). The Supreme Court has unequivocally stated that “a state prisoner’s
§ 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages
or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005) (emphasis removed).
In this case, Calderon’s claims are inextricably linked to the legality of his present
sentence and confinement in TDCJ. Calderon requests that this Court grant injunctive
relief ordering the defendants to “settle” his habeas claims and to permit his habeas claims
to pass through the “gateway” of actual innocence. See McQuiggin v. Perkins, 569 U.S.
383 (2013) (actual innocence, if proved, provides a gateway for a petition to present claims
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that otherwise would be barred). Thus, a finding in Calderon’s favor in this case would
necessarily imply that his actual-innocence claim is meritorious. Under Heck, he is entitled
to proceed with his § 1983 claim only if the judgment against him previously has been
reversed or otherwise declared invalid.
Public court records do not reflect, and Calderon does not claim, that his conviction
has been invalidated or otherwise set aside. Absent this showing, the rule in Heck precludes
his claim for relief. See Wilkinson, 544 U.S. at 81-82; Clarke v. Stalder, 154 F.3d 186,
190-91 (5th Cir. 1998) (en banc).
Calderon’s civil-rights claims are not cognizable under 42 U.S.C. § 1983 at this time
and his claim for injunctive and declaratory relief must be dismissed without prejudice. Id.
at 191; Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). Any claims for damages
must be dismissed with prejudice to being asserted again until the Heck conditions are met.
See id. (explaining that claims barred by Heck are “dismissed with prejudice to their being
asserted again until the Heck conditions are met”).
Additionally, the Court notes that a judge is entitled to absolute immunity from a
claim for damages when the claim arises out of acts performed in the exercise of judicial
functions. Davis v. Tarrant County, Texas, 565 F.3d 214, 221 (5th Cir. 2009).
If Calderon seeks to challenge Judge Brown’s rulings or Lumpkin’s arguments in
Civil Action No. 3:24-0324, his proper recourse is to seek relief in that case or, if final
judgment is entered against him, to file an appeal.
IV.

CONCLUSION
For the reasons stated above, the Court ORDERS as follows:

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1. The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. 2) is
GRANTED. The plaintiff is not assessed an initial filing fee. The agency having
custody of the plaintiff is directed to collect the $350 filing fee from his inmate trustfund account, when funds are available, and forward it to the Court.
2. The complaint (Dkt. 1) filed by Calderon is DISMISSED under 28 U.S.C.
§1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted. His claims for injunctive relief are dismissed without
prejudice. Any claims for monetary damages are dismissed with prejudice to his
claims being asserted again until the Heck conditions are met.
3. All pending motions, if any, are DENIED as moot.
The Clerk will provide a copy of this order to the parties and to (1) the TDCJ
Office of General Counsel at the email address on file with the court; (2) the Inmate
Trust

Fund,

P.O.

Box

629,

Huntsville,

Texas

77342-0629,

by

email

at [e-mail]; and (3) the Manager of the Three-Strikes List
for the Southern District of Texas at [e-mail].
SIGNED at Houston, Texas, on

November 26

, 2024.

_____________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

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