IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

GARLAND FLEMING, PRO SE, §

TDCJ-CID No. 847295, §

§

 Plaintiff, §

§

V. § 2:04-CV-0262

§

DOUGLAS DRETKE and, §

GENE L. DULANEY, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff GARLAND FLEMING, acting pro se and while a prisoner incarcerated

in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit

pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced

defendants and was granted permission to proceed in forma pauperis.

PLAINTIFF’S COMPLAINT

Plaintiff complains that on October 1, 1998, defendant DULANEY, Judge of the

106th District Court of Dawson County, violated plaintiff’s right to Due Process by issuing a

“false, void, written judgment” allowing plaintiff to be incarcerated for an “invalid cumulative

20-year sentence” and that defendant DRETKE is wrongly imprisoning plaintiff pursuant to such

judgment.

Plaintiff requests $750,000.00 in punitive damages, “a pro-se lawyers fee” and

immediate release from prison or that the Court takes steps to authorize such release.

 

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A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see,

Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

 2

Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted

to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as

frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson

questionnaire.").

2

JUDICIAL REVIEW

When a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity, the Court must evaluate the complaint and dismiss it without service of

process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous1

, malicious, fails to

state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will

support dismissal of a suit brought under any federal law by a prisoner confined in any jail,

prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C.

1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v.

Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991)2

.

The District Judge has reviewed plaintiff's pleadings and has viewed the facts

alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to

answer by defendants.

THE LAW AND ANALYSIS

"[W]hen a state prisoner is challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to immediate release

or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." 

Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Boyd v. Biggers, 31

F3d 279, 283 n.4 (5th Cir. 1994). Thus, plaintiff’s request for immediate release must be pursued

 

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through a petition for writ of habeas corpus.

As to plaintiff’s requests for monetary relief, a favorable decision concerning the

claims advanced in this cause would necessarily call into doubt the validity of the conviction

leading to plaintiff’s present incarceration. Any section 1983 claim which attacks the

unconstitutionality of a conviction or sentence does not accrue until that 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." Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372,

129 L.Ed.2d 383 (1994)(section 1983 complainant sought money damages based upon alleged

unlawful acts by law enforcement officials that had led to the plaintiff's arrest and conviction);

Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995). Plaintiff’s own allegations demonstrate his

conviction has not been reversed, expunged, invalidated or called into question. Plaintiff’s

claims asserted in the instant cause clearly fall within the scope of Heck and are barred until

plaintiff can fulfill the Heck requirement. Consequently, plaintiff’s claims lack an arguable legal

basis and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338

(1989).

CONCLUSION

IT IS HEREBY ORDERED:

Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well

as Title 42, United States Code, section 1997e(c)(1), this Civil Rights Complaint is DISMISSED 

AS FRIVOLOUS AND WITH PREJUDICE TO BEING ASSERTED AGAIN UNTIL THE

HECK CONDITIONS ARE MET. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

 

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Plaintiff’s claims sounding in habeas are DISMISSED WITHOUT PREJUDICE

to being pursued by filing a petition for writ of habeas corpus. Plaintiff is cautioned he must first

exhaust state remedies before filing a federal petition for writ of habeas corpus.

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of

record by first class mail. The Clerk will also mail a copy to the Pro Se Clerk at the U.S. District

Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED this 31st day of May, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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