IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

DONALD JOSEPH BELL, #14687, ) 

Plaintiff, )

)

v. ) 3:05-CV-1933-G

) ECF

C.L. WILLIAMS, et al., )

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, this cause has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights action brought by a pre-trial detainee pursuant to 42

U.S.C. § 1983.

Parties: Plaintiff is incarcerated at the Kerrville State Hospital in Kerrville, Texas. 

Defendants are Dallas Police Lieutenant C.L. Williams, former Dallas Chief of Police Randy

Hampton, Chief of Police David M. Kunkle, former Dallas County Sheriff Jim Bowles, and

witness/complainant Virginia Bell. 

The Court did not issue process pending preliminary screening. On November 15, 2005,

the Court issued a questionnaire to Plaintiff, who filed his answers on November 28, 2005. 

Statement of Case: On November 31, 2003, Plaintiff was indicted in the 282nd Judicial

District Court of Dallas County, Texas, of aggravated assault with a deadly weapon, in Cause

No. F03-74395. (Original complaint at 2, and answer to question 1 of the questionnaire). He

 

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1 The Dallas County District Clerk’s Office has verified telephonically that Plaintiff

was found incompetent to stand trial on February 3, 2005. 

2 It appears that Plaintiff has abandoned his claims against Judge Green in his

amended complaint.

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concedes the charges are still pending against him and he is incarcerated at the Kerrville State

Hospital awaiting a trial. (Answer to question 1).1 

In his complaint, Plaintiff seeks to challenge his pending indictment for aggravated

assault with a deadly weapon. He alleges that Ms. Bell, the complainant, “lied on an official

complaint document,” and that Lt. Williams failed to investigate the complaint before it was

submitted to a grand jury. (Amended complaint at 3 and 4). He further alleges that the former

and current Chief of Police, Defendants Hampton and Kunkle, were aware that Lt. Williams had

not investigated the case. (Id.). According to Plaintiff, Ms. Bell is an untrustworthy individual

who repeatedly engaged in identify theft and cashed Plaintiff’s social security checks. With

respect to former Sheriff Bowles, Plaintiff alleges that he housed Plaintiff “in [a] cell not

conforming to commission on jail standards.” (Amended complaint at 3). Plaintiff requests

compensatory and punitive damages. (Id. at 4).2 

Findings and Conclusions: The court has permitted Plaintiff to proceed in forma

pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes

a screening responsibility on the district court. Section 1915A provides in pertinent part that:

The court shall review . . . as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity [and] [o]n review, the court shall

identify cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.

 

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28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).

Section 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds

that the complaint is “frivolous.” A complaint is frivolous, if it “lacks an arguable basis either in

law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Insofar as Plaintiff requests monetary damages against Judge Green for any action taken

in her judicial capacity in his pending criminal case, his claims should be summarily dismissed.

Judge Green is absolutely immune from any claim for monetary damages for any action taken in

her capacity and function as a judge. Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also

Brandley v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995). 

Plaintiff also seeks monetary relief for his imprisonment in a state hospital due to the

pending criminal indictment. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme

Court stated:

in 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, [footnote omitted] 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, 28 U.S.C. § 2254. 

The Heck Court unequivocally held that unless an authorized tribunal or executive body has

overturned or otherwise invalidated the plaintiff's confinement, his claim "is not cognizable

under [section] 1983." Id. at 487. 

Heck can apply pre-conviction to bar "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

 

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3 All circuits that have addressed this issue have concluded that Heck applies to

pre-conviction as well as post-conviction cases. See Smith v. Holtz, 87 F.3d 108 (3rd Cir. 1996);

Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Shamaeizadeh v. Cunigan, 182 F.3d

391, 397 (6th Cir. 1999); Covington v. City of New York, 171 F.3d 117, 124 (2nd Cir. 1999).

4

also Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (noting in passing that Heck prevents

the accrual of § 1983 claims that would necessarily imply the invalidity of convictions on

pending criminal charges); Hamilton v. Dallas Police Dept., 2005 WL 241192, *2 -3 (N.D. Tex.

Jan. 31, 2005) (No. 3:04cv2191-P), findings and recommendation adopted, 2005 WL 549946

(N.D.Tex. Mar 08, 2005); Escamilla v. Dallas Police Dep't, 2001 WL 1338302, *2 (N.D. Tex.,

Dallas Div. Oct. 18, 2001) (No. 3:01cv1159-G) (adopting findings and recommendation of

magistrate judge).3

The main focus of Plaintiff's allegations is that he was unlawfully indicted in No. F03-

74395 for aggravated assault with a deadly weapon. He asserts the indictment is based on a false

complaint that was not investigated and that was submitted by an untrustworthy individual. If

proved, such claims would call into question any future conviction for aggravated assault in No.

F03-74395. Therefore, this lawsuit implicates the validity of a future conviction in No. F03-

74395 and, as such, Plaintiff is precluded from maintaining a cause of action under § 1983. See

Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir.2000) ("[A] claim, that if successful would

necessarily imply the invalidity of a conviction in a pending criminal prosecution, does not

accrue so long as the potential for a conviction in the pending criminal prosecution continues to

exist."). The District Court should dismiss the claims relating to Plaintiff’s indictment in No.

F03-74395 without prejudice as frivolous to them being reasserted when the Heck conditions are

met. See Clarke v. Stadler, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (dismissing Heck barred

 

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claim without prejudice); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (noting that a §

1983 claim which falls under the rule in Heck is legally frivolous); Williams v. Cleer,123 F.

Appx. 591, *593 (5th Cir. 2005) (following Stadler and dismissing Heck barred claims without

prejudice to refiling at such time as the conviction or imprisonment has been expunged, reversed

or otherwise set aside).

In addition to challenging the pending indictment, Plaintiff alleges that former Sheriff

Bowles detained him in a cell that did not comply with the commission on jail standards. 

(Amended complaint at 3). The amended complaint fails to provide any details as to Sheriff’s

Bowles involvement in this alleged constitutional violation. 

To be liable under § 1983, an individual must be personally involved in the acts causing

the deprivation of a person’s constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir.

1983). It is well settled that supervisory officials cannot be held vicariously liable for their

subordinates’ actions under § 1983. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691-95

(1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988); Thibodeaux v. Arceneaux, 768

F.2d 737, 739 (5th Cir.1985) (per curiam). Supervisory officials may be held liable only if they

(i) affirmatively participate in acts that cause constitutional deprivation, or (ii) implement

unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828

F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th 

Cir. 1985).

Plaintiff’s amended complaint fails to allege facts supporting either of the above

standards. Therefore, Plaintiff’s claim against former Sheriff Bowles lacks an arguable basis in

law and should be dismissed with prejudice as frivolous.

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s claims against Defendants

C.L. Williams, Randy Hampton, David Kunkle, and Virginia Bell be dismissed without

prejudice as frivolous to them being reasserted after the Heck conditions are met. 28 U.S.C. §

1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B).

It is further recommended that Plaintiff’s claims against Defendant Green be dismissed

with prejudice as frivolous and for seeking monetary relief against a defendant who is immune

from such relief. See 28 U.S.C. §§ 1915A(b)(1) and (2) and 1915(e)(2)(B)(i) and (iii).

It is also recommended that Plaintiff’s claims against former Sheriff Bowles be dismissed

with prejudice as frivolous. See 28 U.S.C. § 1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B).

A copy of this recommendation will be mailed to Plaintiff.

Signed December 13, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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