1

 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). 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES L. COKER, ID # 817684, )

Plaintiff, )

vs. ) No. 3:05-CV-0852-P (BH)

) ECF

GINA DEBOTTIS, et al., ) Referred to U.S. Magistrate Judge

Defendants. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

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

Plaintiff, an inmate in the Texas prison system, filed the instant action pursuant to 42 U.S.C.

§ 1983. (Compl. at 1; Answer to Question 2 of Magistrate Judge’s Questionnaire (MJQ).1) He sues

Ron Elerick, Correctional Officer at the Allred Unit of the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID); Gina DeBottis, Special Prosecutors Unit in Wichita

County, Texas; Gary Johnson, Executive Director of TDCJ-CID; and Douglas Dretke, Director of

TDCJ-CID. (Compl. at 4; Answers to Questions 1 through 5 of Second MJQ.) He contends that

defendant Elerick has filed fraudulent criminal charges against him and that defendant DeBottis has

pursued such fraudulent charges. (Answers to Questions 1 and 2 of Second MJQ.) He sues defendants Johnson and Dretke because he does not feel safe in TDCJ-CID due to the actions of defendant

 

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Elerick and various disciplinary cases stemming from the allegedly fraudulent charges of defendant

Elerick. (Answers to Questions 4 and 5 of Second MJQ.) By this lawsuit, plaintiff seeks dismissal

of state criminal cases against him and release from custody. (Answer to Question 6 of Second

MJQ.) No process has been issued in this case. 

II. PRELIMINARY SCREENING

Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner

seeking redress from an officer or employee of a governmental entity, plaintiff’s complaint is subject

to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80

(5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is also subject

to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte

dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it

fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

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 complaint fails to state a claim upon which relief

may be granted when it appears beyond 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); Smith

v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp. 2d 768, 769 (N.D.

Tex. 2000). 

 

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 The Court declines to construe this action as a habeas action because plaintiff has specifically indicated that he pursues

this action under § 1983 and not § 2254. (See Answer to Question 2 of MJQ.) Plaintiff, furthermore, has shown no

exhaustion of his state remedies with respect to any habeas claim. 

3

III. SECTION 1983

Plaintiff seeks relief under 42 U.S.C. § 1983 against defendants for events related to

fraudulent charges brought by defendant Elerick. Section 1983 “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. 

Plaintiff seeks release from imprisonment and dismissal of state criminal cases as relief in this

action. (Answer to Question 6 of Second MJQ.) Release from imprisonment, however, is an inappropriate remedy in an action brought pursuant to 42 U.S.C. § 1983. See Wolff v. McDonnell, 418

U.S. 539, 554 (1974). Likewise, dropping criminal charges is an inappropriate remedy in a § 1983

action. See Parker v. Moreno, No. 3:01-CV-1283-D, 2002 WL 1758181, at *3 (N.D. Tex. July 2002)

(order accepting findings and recommendation of magistrate judge). Similarly, dismissing a state

criminal case is not an appropriate § 1983 remedy. Because plaintiff only seeks relief that is unavailable in this action, plaintiff has stated no claim that entitles him to the relief he seeks.2

The Court declines to construe this action as seeking monetary relief against defendants.

Although plaintiff initially indicated that he wanted “restitution” paid to him, (Compl. at 5), his

reasons for “restitution” appear related to the sentence he received on a burglary charge, (see Answer

to Question 1 of MJQ), and in any event, plaintiff specified that he only seeks dismissal of his state

cases and release from custody as relief in this action, (see Answer to Question 6 of Second MJQ.)

In addition, under Heck v. Humphrey, 512 U.S. 477 (1994), the Court must dismiss a complaint

 

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brought pursuant to § 1983, when the civil rights action, if successful, would necessarily imply the

invalidity of plaintiff’s conviction or sentence, unless 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. 512 U.S. at 486-87. Heck, furthermore,

bars “damage claims which, if successful, would necessarily imply the invalidity of a potential conviction on a pending criminal charge”, Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d

892, 898 n.8 (7th Cir. 2001); see also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (interpreting

Heck to prevent accrual of § 1983 claims that would necessarily imply the invalidity of convictions

on pending criminal charges), and claims for damages related to prison disciplinary proceedings in

some cases, see Edwards v. Balisok, 520 U.S. 641, 643-48 (1997). Under the facts alleged by plaintiff,

if the Court were to grant him damages for his claims related to fraudulent charges levied against

him, such ruling would necessarily implicate the validity of disciplinary proceedings and charges or

convictions stemming from the alleged fraudulent charges. Consequently, a claim for monetary

damages under the facts of this case has not yet accrued and appears to be barred by Heck and its

progeny.

IV. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court summarily DISMISS

plaintiff’s complaint with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). He seeks

 

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 Section1915(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.

5

relief that is unavailable in this § 1983 action. The dismissal of this action will count as a “strike”

or “prior occasion” within the meaning 28 U.S.C. § 1915(g).3

SIGNED this 31st day of May, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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 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 Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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