IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALI ODEH, and OSAMA “SAM” ODEH, §

§

Plaintiffs, §

§

v. § Civil Action No. 4:06-CV-0225-K

§

RICHARD B. ROPER, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Order of Reference, this case has been referred to the United

States Magistrate Judge. Before the Court is Defendant Michael P. Heiskell’s Motion to Dismiss,

filed July 7, 2006. Plaintiffs Ali Odeh and Osama “Sam” Odeh did not file a response.

BACKGROUND

The Odeh family engaged in the business of exporting used vehicles to Kuwait. (Pl.’s Am.

Compl. at 3.) Ali Odeh and his sons, including Sam Odeh, are naturalized United States citizens.

(Id. at 4.) In 1996, the Odeh family was prosecuted for violating federal export laws. (Id. at 5.)

Plaintiffs claim that the prosecution was fraudulent and was initiated to help the Kuwait royal family

destroy the Odehs’ business. (Id. at 4.) As part of the criminal prosecution, multiple searches and

seizures of the Odehs’ property occurred. (Id. at 4-5.)

Plaintiffs claim that their prosecution was based upon allegations that they re-set the

odometers on the cars they exported but that Defendants had no evidence of such activity. (Id. at

5.) Plaintiffs’ complaint seems to indicate that Ali Odeh and his sons were convicted and that Sam

Odeh was convicted of a “misprision” charge in 1998, when he returned from Kuwait. (Id. at 15-

16.) Sam ultimately plead guilty to the charges before Judge Maloney. (Id. at 17.) Plaintiffs claim

 

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See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971).

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that Defendants conspired to “steal the case from the bench of the U.S. Judge who had lawful

jurisdiction.” (Id.)

Defendant Michael Heiskell (“Heiskell”) seemed to have represented Sam Odeh in the

underlying preceding. (See id. at 16.) Plaintiffs allege that Heiskell’s name was fraudulently added

to the docket, which reflected that Sam Odeh had retained Heiskell as his counsel. (Id.) Plaintiffs

claim that Sam did not retain Heiskell and that Heiskell was part of a conspiracy to secure a guilty

plea from Sam. (Id.)

 Plaintiffs initiated this action pursuant to Bivens1

 and 42 U.S.C. § 1983 on March 31, 2006,

and filed an amended complaint on April 28, 2006. Plaintiffs named sixteen Defendants and one

unknown Fifth Circuit Judge. Plaintiffs claim that Defendants violated their Fifth Amendment rights

to not be held to answer for a crime unless on presentment of indictment to a grand jury, their Fifth

Amendment due process rights, their Sixth Amendment rights to effective assistance of counsel, and

their Sixth Amendment rights to be informed of the charges against them. (Id. at 24.)

Heiskell filed a motion to dismiss on July 7, 2006. Heiskill claims that: (1) the applicable

statute of limitations bars Plaintiffs’ claims against him; (2) the doctrine enunciated in Heck v.

Humphrey, 512 U.S. 477 (1994), bars Plaintiffs’ claims; and (3) Plaintiffs have failed to state a

claim.

STANDARD OF REVIEW

When considering a motion to dismiss, the Court accepts as true the factual allegations plead

by the non-moving party and any reasonable inferences that the Court can draw from the factual

 

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allegations. Sw. Airlines Co. v. Farechase, Inc., 318 F. Supp. 2d 435, 437 (N.D. Tex. 2004) (citing

Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)). The non-moving party

“must plead specific facts, not mere conclusory allegations” to survive a motion to dismiss. Guidry

v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The movant cannot easily prevail because

the law does not favor motions to dismiss. Mahone v. Addicks Util. Dist., 836 F.2d 921, 926 (5th

Cir. 1988). Courts should not grant a motion to dismiss unless “it appears beyond a doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957).

Since Plaintiffs in this case are proceeding pro se, the Court must construe the allegations

in the complaint liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam); Sec. & Exch.

Comm’n v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam). The Court has an obligation

to construe pro se plaintiffs’ briefs more permissively and to make more allowances. AMX, Int’l,

Inc., 7 F.3d at 75. “[P]ro se litigant[s] [are] subject to less stringent standards than [those]

represented by counsel.” Id. (citing Hughes v. Rowe, 449 U.S. at 9).

DISCUSSION

I. Does the Statute of Limitations Bar Plaintiffs’ Claims?

Heiskell first argues that the applicable statute of limitations bars Plaintiffs’ claims. (Def.’s

Mot. at 1-2.) In a Bivens action, state law governs the limitations period, which is two years in

Texas. Brown v. Nations Bank Corp., 188 F.3d 579, 590 (5th Cir. 1999). In § 1983 actions, the

general personal injury limitations period prescribed by state law applies. Rotella v. Pederson, 144

F.3d 892, 897 (5th Cir. 1998). The Texas statute of limitations for personal injury actions is two

years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1997). Therefore, the applicable

 

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limitations period in this case is two years.

All of Plaintiffs’ allegations against Heiskell stem from Sam Odeh’s criminal conviction and

the related proceedings, which began in 1996 and ended in 1998 with Sam’s conviction. (See Pl.’s

Compl. at 6-9, 15-17.) Plaintiffs’ claims against Heiskell do not make a single reference to a time

period outside of 1998. (See id.) The only allegations in Plaintiffs’ entire complaint that occurred

during the applicable limitations period are allegations concerning Sam Odeh’s coram nobis motion

that he filed in the Northern District of Texas on June 9, 2004. (See id. at 18-24.) However, none

of Plaintiffs’ claims concerning the alleged mishandling of Sam’s coram nobis motion relate to

Heiskell. (See id.) The Court accordingly concludes that the two-year limitations period bars

Plaintiffs’ claims against Heiskell.

II. Does the Heck Doctrine Bar Plaintiffs’ Claims?

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or

for other harm caused by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 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 determination, or called into question by a federal court’s issuance of a writ

of habeas corpus. 

Id. at 486-87. Accordingly, this Court cannot award a judgment in favor of a party if such a

judgment would “necessarily imply the invalidity of a conviction or pending charges.” Hamilton

v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). Plainitffs’ claims against Heiskell stem from Sam Odeh’s

criminal conviction. Plaintiffs argue that actions taken by Heiskell in the course of the criminal

 

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prosecution violated their constitutional rights. If Plaintiffs’ claims are taken as true, they

necessarily impugn the validity of the conviction. Thus, before the Court can consider Plaintiffs’

allegations, Plaintiffs must plead facts demonstrating 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.” Heck, 512 U.S. at 486-87. Since Plaintiffs have failed to allege such facts, the

Court concludes that Heiskell’s motion to dismiss should be granted. Because the Court finds that

both the statute of limitations and the Heck doctrine bar Plaintiffs’ claims against Heiskell, the Court

does not address Heiskell’s failure to state a claim argument.

CONCLUSIONS

The Court concludes that the two-year limitations period bars Plaintiffs’ claims against

Heiskell. Alternatively, the Court concludes that the Heck doctrine bars Plaintiffs’ claims against

Heiskell.

RECOMMENDATION

The Court recommends that the District Court grant Heiskell’s motion to dismiss and dismiss

Plaintiffs’ claims against Heiskell with prejudice.

Signed this 24th day of August, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these conclusions and recommendation must serve and file written

objections within ten days after being served with a copy. A party filing objections must specifically

identify those conclusions or recommendation to which objections are being made. The District

Court need not consider frivolous, conclusory or general objections. A party's failure to file such

written objections to these proposed conclusions and recommendation shall bar that party from a de

novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985).

Additionally, any failure to file written objections to the proposed conclusions and recommendation

within ten days after being served with a copy shall bar the aggrieved party from appealing the legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of

plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en

banc).

 

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