IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

KENNETH W. GOODSON, #05058863, ) 

Plaintiff, )

)

v. ) 3:05-CV-2004-D

)

SAMUEL B. McCUTCHAN, 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 presently incarcerated at the Dallas County Jail. Defendants are

Detective Samuel B. McCutchan, Judge Mary E. Miller, and Appointed Counsel Paul Brauchle. 

The Court did not issue process in this case, pending preliminary screening. On October

18, 2005, the Court issued a questionnaire to Plaintiff, who filed his answers on October 25,

2005. 

Statement of Case: The complaint is not a model of clarity. It appears to challenge the

charge for burglary of a habitation presently pending against Plaintiff in the 194th Judicial

District Court of Dallas County in Cause No. F05-72531. (Complaint at 3-4 and answer to

 

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1 In addition to monetary relief, Plaintiff requests an investigation of the charges

presently pending against him. (Complaint at 4). This Court lacks the authority to order any

investigation. Insofar as Plaintiff requests to be released from the allegedly “false imprisonment

(Complaint at 4), his claim fares no better. (Id. at 4) Such a request is cognizable only in a

habeas corpus action pursuant to 28 U.S.C. § 2241, et. seq. See Preiser v. Rodriguez, 411 U.S.

475, 488-90 (1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (where a petitioner attacks

the duration of his confinement, “‘the appropriate cause of action is a petition for habeas corpus,

even though the facts of the complaint might otherwise be sufficient to state a claim under §

1983.’”); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (a petition for a writ of

habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a

complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional

conditions of confinement and prison procedures); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.

1995) (per curiam) (same).

2

question 2). The relevant facts are as follows:

On June 10, 2005, Plaintiff was arrested and confined in the Dallas County Jail after

items were missing from an apartment he had allegedly been given the authority to enter and

watch until the rightful owner returned. (Complaint at 4). He alleges that Gail Richards made

a false police report incriminating Plaintiff, and that Detective McCutchan’s relied on that report

in racially profiling Plaintiff without conducting a routine investigation. (Id. and Answer to

Question 6). Thereafter, Plaintiff was charged with the offense of burglary of a habitation, for

which he is presently awaiting a trial. (Complaint at 4). Plaintiff requests monetary relief for his

false imprisonment, racial profiling, ineffective assistance of counsel, and due process

violations.1

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

 

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2 “Despite the applicability of Heck v. Humphrey, 512 U.S. 477 (1994) [as set out

more fully below], a district court may appropriately consider the possible applicability of the

doctrine of absolute immunity as a threshold matter in making a section 1915(d) determination.” 

Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995) (citing Boyd v. Biggers, 31 F.3d 279, 284 (5th

Cir.1994)); see also Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir.

1995) (even if a complaint is subject to dismissal under Heck, it remains appropriate for district

courts to resolve the question of immunity before reaching the Heck analysis).

3

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.

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).

Any claims for monetary damages against Judge Mary E. Miller are barred by the

doctrine of absolute immunity.2

 According to Plaintiff, Judge Miller misused her powers by

increasing the felony range of punishment without a reindictment. (Complaint at 3). It is selfevident that any ruling issued by Judge Miller with respect to the punishment range occurred in

Judge Miller’s capacity and function as a judge, which in and of itself renders her immune from

a suit for monetary damages. Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also Brandley

v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995). Therefore, Plaintiff’s claims against Judge

Miller should 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).

Even assuming Plaintiff’s claims were not barred by absolute immunity, they, along with

 

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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

4

the claims against Investigator McCutchan, would impugn the validity of the burglary charge

presently pending against Plaintiff 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

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

 

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

4 42 U.S.C. § 1983 provides, in relevant part: 

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

5

The main focus of Plaintiff's allegations is that he was unlawfully indicted for burglary of

a habitation. 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 burglary of a habitation in No. F05-72531. Therefore, this

lawsuit implicates the validity of a future conviction 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 pending indictment for burglary of a building as frivolous, but without

prejudice to being reasserted if and when the Heck conditions are met. See Clarke v. Stadler,

154 F.3d 186, 189 (5th Cir. 1998) (en banc) (dismissing Heck barred 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).

Next Plaintiff seeks to sue his attorney for providing ineffective assistance of counsel and

permitting Judge Miller to raise the punishment range. Section 1983 affords redress only for

conduct committed by a person acting under color of state law.4

 Neither appointed nor retained

 

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be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

6

counsel acts under color of state law in representing a defendant in the course of a criminal case. 

See Polk County v. Dodson, 454 U.S. 312, 324, 102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981)

(public defender does not act under color of state law when performing a lawyer’s traditional

functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837

F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v.

Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state

law). As such the conduct of Defendant Brauchle in representing Plaintiff since his indictment

for burglary of a habitation is not cognizable under § 1983. Plaintiff’s claims against his court

appointed counsel should be dismissed with prejudice as frivolous.

 RECOMMENDATION:

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

E. Miller 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). Plaintiff’s claims against Investigator McCutchan should be dismissed

as frivolous, See 28 U.S.C. § 1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B), but without prejudice to

them being reasserted after the Heck conditions are met. 

It is further recommended that Plaintiff’s claims against Appointed Counsel Paul

Brauchle be dismissed with prejudice as frivolous, see 28 U.S.C. § 1915A(b)(1); 28 U.S.C. § 

 

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7

1915(e)(2)(B).

A copy of this recommendation will be mailed to Plaintiff.

Signed this 14th day of December, 2005.

____________________________________

WM. F. SANDERSON, JR.

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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