Opinion
No. 3:02-Cv-1860-H
September 24, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE IUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
B. Parties : Plaintiff is currently incarcerated in the Texas prison system. He names Deputy Cheryl Grover and Sheriff Don Anderson as defendants. ( See Compl. at 2-3.)
C. Statement of the Case : In 1990, plaintiff was arrested and convicted for cashing a forged check. ( See Compl. at attached pages; Answer to Question 2 of Magistrate Judge's Questionnaire (MJQ).) On December 5, 1990, plaintiff was convicted of the offense of "forgery by passing" and was sentenced to twelve years incarceration. ( See Answer to Question 2 of MJQ.) Other than the instant federal action, plaintiff has not challenged his December 5, 1990 conviction for passing a forged check. ( See Answer to Question 3 of MJQ.) He concedes that this conviction has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. ( See Answer to Question 4 of MJQ.)
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
Plaintiff claims that defendant Deputy Grover filed a false statement against him that led to his arrest and conviction. ( See Answer to Question 7 of MJQ.) He claims that he has "suffered libel, slander, defamation, and mental torment" because of her false statement. ( Id.) He claims that defendant Sheriff Anderson is responsible for the actions of defendant Deputy Grover by virtue of his status as her supervisor. ( See Answer to Question 6 of MJQ.) Plaintiff seeks monetary damages. (See Answer to Question 1 of MJQ.) No process has been issued in this case.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal if the Court finds the complaint frivolous. A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A claim that falls under the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994) "is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question." Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
III. HECK BAR
Plaintiff seeks relief under 42 U.S.C. § 1983 against a Deputy and Sheriff in Greenville, Texas, for events related to his 1990 arrest and subsequent incarceration. That statute "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id.When a state prisoner seeks monetary damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if so, the complaint must be dismissed unless the plaintiff demonstrates 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 a determination, or called into question by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. See Heck, 512 U.S. at 486-87.
In this instance, plaintiff complains that he was falsely arrested in 1990 and unlawfully held. If the Court were to grant damages for his alleged false arrest and subsequent incarceration under the facts of this case, such a ruling would necessarily implicate the validity of his December 5, 1990 conviction for passing a forged check. See Sappington v. Bartee, 195 F.3d 234, 237 (5th Cir. 1999) (holding that Heck bars recovery under a false arrest theory because a "conviction for aggravated assault necessarily implies that there was probable cause for his arrest at that point in time"); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (holding that Heck bars recovery for false arrest, when there is probable cause for any of the charges made and plaintiff's "proof to establish his false arrest claim, i.e., that there was no probable cause to arrest . . . would demonstrate the invalidity of [plaintiffs] conviction"); Parker v. Moreno, No. 3:01-CV-1283-D, 2002 WL1758181, at *1, 4-5 (N.D. Tex. July 26, 2002) (accepting findings and recommendation that false arrest claim be dismissed under Heck); Gipson v. Dallas County Jail, No. 3:01-CV-0554-D, 2002 WL 257574, at *1-2 (N.D. Tex. Feb. 19, 2002) (same). Accordingly, under Heck, plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated, or expunged prior to bringing an action under § 1983. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff has failed to make such a showing. As stated in his Answers to Questions 3 and 4 he has taken no steps to challenge his forgery conviction in state court and has not had his 1990 conviction or sentence reversed, invalidated, or expunged prior to bringing the instant action. Consequently, his claims are "legally frivolous" within the meaning of 28 U.S.C. § 1915. See Hamilton, 74 F.3d at 103. The Court should dismiss them "with prejudice to their being asserted again until the Heck conditions are met." Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); see also, Boyd v. Biggers, 31 F.3d 279, 283-84 (5th Cir. 1994) (upholding dismissal with prejudice); Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (same).
IV. LIBEL, SLANDER, AND DEFAMATION
Plaintiff's claims for libel, slander, and defamation based on defendant Grover's alleged false statement appears to arise under state rather than federal law. Nevertheless, the Court may, exercise supplemental jurisdiction over pendent state law claims. See 28 U.S.C. § 1367.
To the extent plaintiff indeed asserts state claims of libel, slander, and defamation, such claims are barred by the statute of limitations. Such claims must be brought within one year of their accrual. See Tex. Civ. Prac. Rem. Code Ann. § 16.002. Such claims, furthermore, "accrue[ ] on the date of the communication or publication and not on the date of the consequences or sequelae." Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 131 (Tex.App. — Houston [14th Dist.] 1994, no writ). In this instance, the alleged false statement occurred before plaintiff's conviction on December 5, 1990. ( See Answer to Question 7 of MJQ.) Plaintiff filed the instant complaint well over ten years after the applicable statutes of limitations had expired. Nothing indicates that the limitations periods should be tolled. Plaintiff asserts no basis for equitable tolling under Texas law. Furthermore, nothing indicates that such tolling is warranted. Consequently, plaintiffs pendent state claims should be dismissed as frivolous under 28 U.S.C. § 1915 (e) (2) and 1915A for the failure of plaintiff to file them within the statutory periods of limitations.
Defamation is simply another term for libel and slander. See Michael v. Dyke, 41 S.W.3d 746, 753 (Tex.App. — Corpus Christi 2001, no pet.).
"Because the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control." Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998).
V. RECOMMENDATION
For the foregoing reasons, it is recommended that the Court DISMISS plaintiff's claims under 42 U.S.C. § 1983 with prejudice as frivolous until such time as plaintiff satisfies the conditions set forth in Heck v. Humphrey, 512 U.S. 477 (1994). It is further recommended that the Court summarily DISMISS the remainder of this action, i.e. plaintiff's pendent state-law claims of libel, slander, and defamation, with prejudice as frivolous for the failure of plaintiff to file them within the applicable period of limitations. The dismissal of this action will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBTECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Sews. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).