Wickerham v. Waterman et al
Filing
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ORDER DISMISSING CASE; Plaintiff's claims against Defendant's Waterman, Fitzgerald, DeLaRosa, Dillman, Brooks and Flowers are DISMISSED WITHOUT PREJUDICE. The Court declines to excercise supplemental jurisdiction over Plaintiff's claims against Defts. Escamilla, and Keebler, those claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's Motions to proceed IFP are DISMISSED AS MOOT. The Clerk is directed to CLOSE this case. Signed by Judge Xavier Rodriguez. (wg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RYAN C. WICKERHAM,
Plaintiff,
VS.
WARREN WATERMAN, ET AL.,
Defendants.
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Civil Action No: SA-14-CA-766-XR
ORDER
On this date the Court considered the United States Magistrate Judge’s Report and
Recommendation in the above-numbered and styled case, filed October 7, 2014 (docket no. 6) and
Plaintiff’s objections thereto (docket no. 8). The Magistrate Judge conducted a review of Plaintiff’s
motion to proceed in forma pauperis and proposed complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and recommends dismissing Plaintiff’s case without prejudice and dismissing the
motion to proceed IFP as moot.
After careful consideration, the Court will accept the
recommendations.
Standard of Review
Where no party has objected to the Magistrate Judge’s Report and Recommendation, the
Court need not conduct a de novo review of it. See 28 U.S.C. §636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the report or specified proposed findings and
recommendations to which objection is made”). On the other hand, any Report or Recommendation
that is objected to requires de novo review. Such a review means that the Court will examine the
entire record and will make an independent assessment of the law.
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Background
On August 28, 2014, pro se Plaintiff Ryan Wickerham filed a motion to proceed IFP and a
proposed complaint. (docket no. 1). The proposed complaint names Warren Waterman, Williamson
County Prosecutor, in his individual and official capacities, Elissa Fitzgerald, Williamson County
Prosecutor, in her individual and official capacities, Alex Delarosa, Round Rock Police Department
Officer, in his individual and official capacities, Derek Dillman, Round Rock Police Department
Officer, in his individual and official capacities, Judge Suzanne Brooks, Williamson County Judge,
in her individual and official capacities, Judge Wilford Flowers, Williamson County Judge, in his
individual and official capacities, Mary Escamilla, Attorney at Law, Elizabeth P. Keebler, John Does
1-50, Jane Does 1-50, and “Other Entities Does” 1-50. The complaint alleges jurisdiction under 28
U.S.C. § 1331, federal question jurisdiction, and supplemental jurisdiction under 28 U.S.C. § 1367
over any state-law claims. The complaint also invokes jurisdiction under 28 U.S.C. § 1332, diversity
jurisdiction, and alleges that the damages exceed $75,000.
Plaintiff’s claims stem from a prosecution and criminal trial on a charge of family-violence
assault that occurred September 31, 2013 to October 1, 2013 in Williamson County.
Plaintiff
alleges that Defendant Elizabeth Keebler made a false claim of assault on February 23, 2012.
Plaintiff alleges that “the defendants” have committed various federal criminal offenses, and also
asserts claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments,
specifically false arrest, deliberate omission of material in the misdemeanor complaint and affidavit
used to obtain the arrest warrant under false pretenses, and malicious prosecution. Plaintiff further
asserts claims under 42 U.S.C. § 1983 for civil conspiracy to violate constitutional and civil rights,
and a conspiracy under 42 U.S.C. § 1985(2). Plaintiff alleges that his rights under the Sixth
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Amendment, Eighth Amendment, and Ninth Amendment, as well as violations of his rights under
the Texas Bill of Rights (section 10 and section 13).
Plaintiff alleges that Defendant Warren Waterman withheld exculpatory evidence and
engaged in prosecutorial misconduct. Plaintiff alleges that Waterman knew Plaintiff was innocent,
but chose to ignore it and secret it from the Court and the jury so he could win a false and wrongful
conviction, that Waterman lied and made false statements during the trial, suborned perjury,
committed Brady violations, and tainted the jury pool with inflammatory statements during voir dire.
Plaintiff alleges that Defendant Fitzgerald acted in concert with Defendant Waterman by withholding
exculpatory evidence.
Plaintiff alleges that Defendant Judge Suzanne Brooks “abused her official capacity” and
“took basic rights of the Plaintiff away because he chose to represent himself.” Plaintiff alleges that
Judge Brooks ordered Plaintiff to come to wasteful hearings that had no real purpose other than to
degrade and admonish Plaintiff, and that she “used these admonishments and threats of maximum
penalty and punishments in manner which influenced the Trial Judge to become prejudiced against
the Plaintiff during the sentencing phase.” Plaintiff contends that Judge Brooks was biased and
should have recused herself. Plaintiff alleges that Defendant Judge Wilford Flowers failed to
properly manage the case, allowed the Prosecutors to behave in a prejudicial and bullying manner
toward Plaintiff, denied Plaintiff the right to present evidence at trial that would have shown his
innocence, denied Plaintiff the right to question witnesses when the Prosecutor raised a frivolous
objection, and allowed the trial to continue after Defendant Elizabeth Keebler made multiple
admissions that she had physically abused the Plaintiff. Plaintiff alleges that Judge Flowers imposed
an excessive sentence in violation of the Eighth Amendment and Section 13 of the Texas
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Constitution.
Plaintiff alleges that Defendant Alex Delarosa responded to the dispatch call on February 23,
but had “pre-determined the outcome” before investigating. Plaintiff alleges that Delarosa’s report
contained erroneous information and did not support criminal charges, yet Delarosa “pursued this
matter with the knowledge that said document contained statements that directly contradicted any
criminal actions involving the Plaintiff.” Plaintiff claims that the report contains “a very clear
statement” from Defendant Keebler where she admits that she became physically violent toward
Plaintiff, pushing Plaintiff in an aggressive manner. Plaintiff alleges that Delarosa lied under oath
at trial regarding the witness B. Rogers “and many other statements regarding the events that took
place.” Plaintiff alleges that Delarosa acted in concert with Waterman during his sworn testimony,
that he secured the arrest warrant and gave false testimony to the Judge who signed the warrant,
causing Plaintiff to be arrested falsely and wrongfully. Plaintiff alleges that Officer Derek Dillman
failed to act in a professional manner and failed to prevent an injustice and intervene to avoid
wasting taxpayer money on a false report. Plaintiff further alleges that Dillman “lied to the Court
and the jury during the trial.”
Plaintiff also sues Elizabeth Keebler and her attorney Mary Escamilla. Plaintiff alleges that
Escamilla attempted to influence rulings in favor of her client Keebler in the family law court,
threatened Plaintiff with sanctions and other actions to interfere with the custodial relationship
between Plaintiff and his son, and made statements regarding the criminal conviction to take the
child away from Plaintiff. Plaintiff complains that Escamilla has violated the rules of professional
conduct, participates in ex parte communications, makes false statements, and files sham motions.
Plaintiff alleges that Defendant Keebler has “done anything and everything possible to ruin and
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destroy the Plaintiff’s life as a whole.” Plaintiff sues her for slander and defamation. Plaintiff
alleges that her claim of assault was a lie, and that she harasses and stalks Plaintiff in violation of
a court order.
On September 4, Magistrate Judge Bemporad issued a Show Cause Order. (docket no. 2).
Therein, he noted that IFP matters are governed by 28 U.S.C. § 1915, and that § 1915(e)(2)(B)
provides that the Court must dismiss a case at any time if it determines that the action is (i) frivolous
or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. Magistrate Judge Bemporad noted that
Plaintiff’s claims could be barred by Heck v. Humphrey, 512 U.S. 477 (1994) if they are intended
to attack a criminal conviction that has not been reversed, expunged, or otherwise invalidated.
Magistrate Judge Bemporad further noted that the case appeared to have been filed in the wrong
division, since Plaintiff and Defendants all appear to reside in the Austin Division and the events
giving rise to the lawsuit appear to have occurred there. Magistrate Judge Bemporad therefore
ordered Plaintiff to file an amended complaint that stated whether he was convicted of the charges
or was currently facing pending charges and whether any conviction had been set aside, and to
explain why the case should not be transferred to the Austin Division.
On September 24, Plaintiff responded to the Show Cause Order and filed an Amended
Complaint. Plaintiff complained that Magistrate Judge Bemporad had misinterpreted and misapplied
42 U.S.C. § 1983 and argues that the Magistrate Judge had improperly assumed the role of a defense
attorney. The Amended Complaint still invokes federal question jurisdiction and diversity
jurisdiction, but states in bold, “The Plaintiff no longer raises any state questions or issues in this
cause of action.” The Amended Complaint also removes all references to 42 U.S.C. § 1983. The
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Amended Complaint further states, “The Plaintiff is exercising his right to seek proper remedy for
the issues and claims he has brought in this manner and does not need to [sic] the MAGISTRATE
JUDGE HENRY J. BEMPORAD telling him how to manage the above styled case.”
The Amended Complaint explains that Plaintiff was charged with a Class A Misdemeanor
from an incident in which Defendant Keebler made a false claim of assault, that charges were filed
in February 2012, Plaintiff pleaded not guilty, the jury found him guilty after a two-day trial ending
on October 1, 2013. Plaintiff states that Defendant Judge Flowers sentenced Plaintiff to more than
the maximum allowed by law, in violation of the Eighth Amendment, and that his sentence “has
been complete and is DISPOSED and CLOSED,” that Plaintiff is not under any probation or other
obligation in relation to the sentence, and that his appeal was closed on September 19, 2014. See
Wickerham v. State, 2014 WL 4725458 (Tex. App.–Austin Sept. 19, 2014) (granting Appellant
Wickerham’s pro se motion to dismiss the appeal). The Amended Complaint asserts generally the
same claims against the various Defendants as the proposed Original Complaint.
Magistrate Judge’s Report and Recommendation
On October 7, Magistrate Judge Bemporad issued his Report and Recommendation pursuant
to 28 U.S.C. § 636(b). That provision authorizes a district judge to “designate a magistrate judge
to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by a judge of the court,” of certain motions
listed in subparagraph (A), including motions to dismiss for failure to state a claim upon which relief
can be granted, and to assign “such additional duties as are not inconsistent with the Constitution and
laws of the United States.” 28 U.S.C. § 636. In this district, all motions to proceed in forma
pauperis are referred to a Magistrate Judge for review and, when warranted, issuance of a report and
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recommendation.
In civil matters, there is no absolute right to proceed IFP. Startti v. United States, 415 F.2d
1115, 1116 (5th Cir. 1969). IFP status is a privilege that is extended at the court’s discretion to those
plaintiffs who are unable to pay filing fees. Id. Section 1915 of Chapter 123 of Title 28 governs
“proceedings in forma pauperis.” It provides that any court of the United States may authorize the
commencement of a civil action without prepayment of fees by a person who submits an affidavit
that includes a statement of all assets such prisoner possesses that the person is unable to pay such
fees or give security therefor. 28 U.S.C. § 1915(a)(1). Thus, the Court may authorize the
commencement of an action upon demonstration that the financial requirements are satisfied.
However, under § 1915(e)(2), “Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any time if the court determines that--(A) the
allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” (Emphasis added). Thus, pursuant to this statute, “District courts are
required to dismiss IFP complaints upon determining that such complaints are frivolous, fail to state
a claim upon which relief can be granted, or seek monetary damages from a defendant who is
immune from such relief. § 1915(e)(2)(B).” Rutherford v. U.S. District Court, 425 F. App’x 400,
400 (5th Cir. 2011). Section 1915(e)(2) applies equally to prisoner and nonprisoner IFP cases.
James v. Richardson, 344 F. App’x 982, 983 (5th Cir. 2009) (per curiam) (unpublished) (“Section
1915(e)(2)(B) requires dismissal of frivolous IFP actions even if those actions are brought by
non-prisoner plaintiffs.”); Hayes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (examining the text and
legislative history of 28 U.S.C. § 1915(a)(1) and finding that statute is intended to apply to prisoners
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and non-prisoners); see also McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997)
(overruled in part on other grounds) (holding district courts are required to screen non-prisoner
complaints under 1915(e)(2)(B) because “[t]he language of 1915(e)(2) does not differentiate between
cases filed by prisoners and cases filed by non-prisoners”); Wiltz v. Neustrom, No. 13-2644, 2014
WL 250337 (W.D. La. Jan. 22, 2014) (report and recommendation) (citing cases).
Therefore, pursuant to the referral of Plaintiff’s IFP motion and 28 U.S.C. § 1915(e)(2), the
Magistrate Judge properly undertook a review of Plaintiff’s proposed complaint to determine
whether it should be dismissed pursuant to § 1915(e)(2). After reviewing Plaintiff’s response to the
Show Cause Order and the Amended Complaint, Magistrate Judge Bemporad concluded that
Plaintiff’s claims against the Williamson County prosecutors and judges and the Round Rock Police
Officer defendants are barred by Heck v. Humphrey. Magistrate Judge Bemporad further concluded
that the Court should not exercise supplemental jurisdiction over Plaintiff’s state-law claims against
Escamilla and Keebler. Accordingly, the Magistrate Judge’s conclusion was that § 1915(e)(2)(B)(ii)
required dismissal for failure to state a claim. Because the Magistrate Judge concluded that such
dismissal was appropriate, he properly submitted a Report and Recommendation to the Court
pursuant to 28 U.S.C. § 636.1
Plaintiff’s objections assert that Plaintiff is confused by what has transpired in this case, and
asks the Undersigned Judge “to clarify the role of Magistrate Judge Henry J. Bemporad.” Plaintiff
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Plaintiff notes that he filed a formal notice of non-consent to Magistrate Judge jurisdiction,
but argues that Magistrate Judge Bemporad disregarded Plaintiff’s wishes. Pursuant to 28 U.S.C.
§ 636(c), a party may consent to have a magistrate judge conduct proceedings and enter judgment;
or a party may withhold such consent without adverse consequences. Magistrate Judge Bemporad
has not ruled on any of Plaintiff’s claims or denied Plaintiff’s IFP motion, but has only issued
recommendations to the Undersigned Judge. Under these circumstances, Plaintiff’s consent is not
required. Further, as noted, the Court is conducting a de novo review.
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contends that it “is not typical or normal procedure for a Magistrate Judge to use his office or
position to issue an opinion, order or report & recommendation as to whether that said justice likes
or agrees with the Plaintiff’s case or its management of it.” Plaintiff argues that he has a right to
seek redress “without the improper interference from the Magistrate Judge Henry J. Bemporad acting
as a defense attorney for the Defendant(s) or practicing law from the bench” and that Magistrate
Judge Bemporad “has by his filing acted as a Defense Attorney who has a strong dislike for the
Plaintiff’s case.”
As explained above, Magistrate Judge Bemporad properly performed his duties in this case
in reviewing the proposed IFP complaint pursuant to 28 U.S.C. § 1915(e)(2). That statute authorizes
sua sponte review of the complaint to determine whether it states a claim, and mandates dismissal
if it fails to do so. Contrary to Plaintiff’s assertion, the Magistrate Judge’s review and issuance of
a report and recommendation is normal and common procedure in this district and others, and is not
“improper interference” or “acting as a Defense Attorney.” Plaintiff’s complaints regarding the
actions of the Magistrate Judge are frivolous.
Having clarified the role of the Magistrate Judge, the Court will conduct a de novo review
to determine whether the complaint should be dismissed under § 1915(e)(2).
Analysis
A complaint is subject to dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) under
the same standard used to review a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
A claim that is barred by Heck v. Humphrey is subject to dismissal under Rule 12(b)(6) for failure
to state a claim for relief. See, e.g., Snarke v. Barkley, 548 F. App’x 275 (5th Cir. 2013). As noted,
the Magistrate Judge concluded that Plaintiff’s claims against the prosecutors, judges, and officers
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are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff’s objections include the following: (1) Plaintiff is not asserting claims under 42
U.S.C. § 1983 (directing the Court to see the Amended Complaint, which removes all references to
§ 1983); (2) portions of the Report and Recommendation contain “overbroad and unclear language
and a case citation that lacks proper clarity as to the Plaintiff’s case”; (3) portions of the Report and
Recommendation are “very inflammatory and adverse against the Plaintiff” and should be
impeached; (4) portions of the Report and Recommendation are “overly wordy and not relevant to
the Plaintiff’s cause of action”; (5) the Plaintiff satisfies the financial requirements for IFP status and
the motion to proceed IFP is ripe for review and should be decided; and (6) Plaintiff “anticipates
filing a Motion to Move Venue so the individually named Defendant’s [sic] have a fair opportunity
to defend themselves in a venue that is not bias [sic].”
The Magistrate Judge concluded that Plaintiff’s claims against the county prosecutors,
judges, and Round Rock police officers are claims under § 1983, which Plaintiff claims is error.
Plaintiff’s original complaint cites § 1983 (based on violations of the Fourth and Fourteenth
Amendments) as the basis for certain claims against Defendants Delarosa, Waterman, and Fitzgerald.
He also asserts that the judge defendants violated his right to a speedy trial and to confront witnesses
under the Sixth Amendment and imposed an excessive punishment in violation of the Eighth
Amendment. In addition, he claimed a civil conspiracy to violate constitutional rights under § 1983
and § 1985. In the Amended Complaint, Plaintiff no longer references § 1983 or the Fourth or
Fourteenth Amendments. However, Plaintiff alleges that Defendants Waterman, Fitzgerald,
Delarosa, Dillman, Brooks, and Flowers violated his civil rights. Regardless of Plaintiff’s attempt
to re-cast these claims, they are only cognizable under § 1983, which permits actions for deprivations
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of rights secured by the Constitution when the deprivation was committed by a person acting under
color of state law.
Plaintiff is suing these Defendants for allegedly violating his constitutional rights. To the
extent Plaintiff’s claims rest on an alleged deprivation of his constitutional rights, there is generally
no right to bring a cause of action directly under the United States Constitution. Hearth Inc. v. Dept.
of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980); Hunt v. Smith, 67 F. Supp. 2d 675, 681-82
(E.D. Tex. 1999). If a plaintiff fails to invoke § 1983 when the claim is based upon a deprivation
of federal constitutional rights, the plaintiff fails to state a claim for relief. Therefore, Plaintiff’s
attempt to bring his claims directly under the Constitution fail. Similarly, to the extent Plaintiff
argues that the Defendants were acting outside the scope of their authority or not acting under color
of state law for purposes of § 1983, there is no viable claim against private individuals for
deprivation of civil rights. Thus, Plaintiff’s claims are cognizable, if at all, only under § 1983.2
It appears that Plaintiff is attempting to deny that his claims are brought under § 1983 in
order to avoid the Heck v. Humphrey bar. Under Heck, a plaintiff in a § 1983 action may not recover
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Plaintiff asserts that Magistrate Judge Bemporad improperly interprets and cites § 1983 and
“is not properly applying the correct intent of the Civil Code.” However, the Court sees no basis for
concluding that Magistrate Judge Bemporad has misapplied or misconstrued § 1983. Rather, it
appears that Plaintiff fails to properly understand and apply § 1983. Section 1983 provides a civil
action for deprivations of rights secured by the Constitution or federal laws by persons acting under
color of state law. It is unclear whether Plaintiff’s assertion that he “no longer raises any state
questions or issues in this cause of action” is meant to refer to the § 1983 claims, given that § 1983
claims are not “state questions or issues” but are claims for violations of federal rights (albeit by
persons acting under color of state law). The Court notes that Plaintiff’s Amended Complaint does
remove his allegations of violations of the Texas Constitution, but it does not remove the allegations
that Defendant Keebler slandered and defamed Plaintiff, which claims would appear to arise solely
under state law. The Court further notes that Plaintiff’s claims that Defendants violated various
federal criminal statutes are not cognizable under § 1983; Plaintiff lacks standing to enforce federal
criminal laws. Similarly, § 1983 does not provide a remedy for violations of rules of professional
conduct, since these are not constitutional provisions or a federal statute.
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damages for an “allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,” unless he “prove[s] 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 determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. It also appears that Plaintiff
erroneously believed that dismissing the appeal of his criminal case would also prevent application
of Heck v. Humphrey. However, the Court finds that Heck v. Humphrey does apply to bar Plaintiff’s
claims for deprivation of his civil rights.
Plaintiff seeks money damages from the defendants for alleged violations of his civil rights.
Plaintiff does not dispute that he was convicted of family violence-assault. Pursuant to Heck, 512
U.S. at 486-87, if a plaintiff seeks damages in a § 1983 suit for alleged constitutional violations and
a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence, the suit must be dismissed, and the cause of action will not accrue until the conviction or
sentence is overturned or otherwise invalidated. There is no indication that Plaintiff’s conviction
has been reversed, expunged, or otherwise invalidated. The fact that Plaintiff has completed his
sentence and that he dismissed the appeal such that there are no pending proceedings in state court
is irrelevant to the Heck v. Humphrey bar. It is the fact of conviction that matters, not whether the
appeal is still pending.
As long as the conviction stands, any claims that necessarily implicate the validity of
Plaintiff’s conviction or sentence are barred by Heck v. Humphrey. This includes claims that Plaintiff
was falsely accused, wrongfully arrested, and maliciously prosecuted, as well as claims for
prosecutorial misconduct and Brady violations. See Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir.
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1994); Lewis v. City of Waxahachie, 465 F. App’s 383, 385 (5th Cir. 2012); Emerson v. Thaler, 544
F. App’x 325, 327 n.1 (5th Cir. 2013) (“[C]laims of Brady violations, prosecutorial misconduct and
actual innocence, which necessarily imply the invalidity of his conviction, are not cognizable under
§ 1983 but must be brought in a habeas petition.”). The Court therefore agrees with the Magistrate
Judge that Plaintiff’s claims against Defendants Waterman, Fitzgerald, Delarosa, Dillman, Brooks,
and Flowers would call into question the validity of Plaintiff’s conviction or sentence, and are
therefore barred by Heck until and unless Plaintiff’s conviction is overturned or invalidated. The
Court therefore finds that these claims should be dismissed without prejudice.
The Court further agrees with the Magistrate Judge that there does not appear to be a basis
for federal question jurisdiction over Plaintiff’s claims against Defendants Escamilla and Keebler.
Plaintiff does not allege that these Defendants were acting under color of state law or that they
deprived him of his civil rights. Although Plaintiff asserts diversity jurisdiction, he fails to establish
that each of the Defendants is a citizen of a different state than Plaintiff, nor is such a state of facts
likely. Accordingly, the Court declines to exercise supplemental jurisdiction over the claims against
Defendants Escamilla and Keebler and finds they should be dismissed without prejudice.
Conclusion
Plaintiff’s claims against Defendants Waterman, Fitzgerald, Delarosa, Dillman, Brooks, and
Flowers are DISMISSED WITHOUT PREJUDICE pursuant to Heck v. Humphrey. The Court
declines to exercise supplemental jurisdiction over Plaintiff’s claims against Defendants Escamilla
and Keebler, and those claims are therefore DISMISSED WITHOUT PREJUDICE.
Plaintiff’s motions to proceed IFP (docket nos. 1 & 9) are DISMISSED AS MOOT.
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The Clerk is directed to CLOSE this case.
It is so ORDERED.
SIGNED this 28th day of October, 2014.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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