IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

JOHNNY RAY GRAY, PRO SE, §

Federal Inmate Reg. #28745177, §

§

 Plaintiff, §

§

V. § 2:05-CV-0135

§

MICHAEL AMOS, Lieutenant, §

JERRY MASSENGILL, Sergeant, §

VERNON WILSON, Agent, §

DAVID PONCE, Agent, §

STEVE THOMAS, Agent, and §

NFN FISHER, City Police Officer, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff JOHNNY RAY GRAY, acting pro se and while a prisoner incarcerated

in the Englewood Federal Correctional Institution, 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 February 20, 2002, he was unlawfully arrested and

searched. He states later questioning was conducted without an attorney, despite his request for

one. Plaintiff also states he was convicted of a drug charge, upon a guilty plea and in accordance

with a plea agreement, as a result of unlawful wire tapes. Plaintiff sues the law enforcement

officers involved in his search, arrest, and interrogation, as well as their supervisors.

Plaintiff states he filed a motion under Title 28, United States Code, section 2255

in his federal criminal case and that it is still pending.

 

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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

Plaintiff requests unspecified injunctive relief and compensatory and punitive

damages.

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

Review of court records of the Northern District of Texas provides access to

plaintiff’s motion to set aside or correct sentence filed in his criminal case and reveals that the

grounds forming the basis for that motion are identical to those alleged as the basis for his civil

 

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rights complaint in the instant cause. A favorable decision concerning the claims advanced in

this cause would necessarily call into doubt plaintiff’s conviction in cause no. 5:04-CV-0126.

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). Court records and 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).

LET JUDGMENT BE ENTERED ACCORDINGLY.

All pending motions are DENIED.

 

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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 23rd day of May, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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