Findings and Conclusions of the

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARVIN LUTHER MALONE, 411853, )

Plaintiff, )

)

v. ) No. 3:05-CV-788-N

)

ATTORNEY GENERAL OF TEXAS, 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 District Court, this

case has been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. Parties

Plaintiff brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se, and

the Court has granted him permission to proceed in forma pauperis. Defendants are: (1) Greg

Abbot, Texas Attorney General; (2) Douglas Dretke, Director of the Texas Department of

Criminal Justice, Institutional Division; (3) Honorable Ed Kinkeade; and (4) prosecutor Stephen

Miller.

II. Background

Plaintiff alleges Defendants violated his civil rights by falsely convicting him of

aggravated sexual assault of a child under the age of fourteen and by filing false responses to his

petition for writ of habeas corpus. Plaintiff seeks to have the conviction expunged. He also

seeks monetary damages.

 

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III. Screening

Plaintiff’s complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That

section provides in pertinent part:

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 suit. 

28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) (“Notwithstanding any filing

fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time

if the court determines that . . . (B) the action or appeal–(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant

who is immune from suit.”). 

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

that the complaint is frivolous or fails to state a claim upon which relief may be granted. A

complaint is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989). 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 that

would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

IV. Discussion

1. Heck v. Humprey

In Heck v. Humprey, 512 U.S. 477 (1994), the Supreme Court held that a § 1983 claim

attacking the constitutionality of a conviction or imprisonment does not accrue until that

 

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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. 

Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a

conviction or pending charge. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). 

Plaintiff’s claims for damages are clearly connected to the legality of his conviction. A

finding in favor of Plaintiff would imply the invalidity of his conviction. Plaintiff, however,

states that his conviction has not been reversed, expunged, or otherwise invalidated. (See

Magistrate Judge’s Questionnaire, Answer No. 3). Hence, no § 1983 cause of action has yet

accrued and these claims should be dismissed with prejudice until the Heck conditions are met. 

See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with

prejudice until Heck conditions are met).

2. Immunity

Plaintiff’s claims against Judge Kinkeade and prosecutor Stephen Miller are additionally

barred by immunity. The United States Supreme Court has recognized absolute judicial

immunity for judges acting in the performance of their judicial duties. See Nixon v. Fitzgerald,

457 U.S. 731, 745-46 (1982). Similarly, prosecutors have absolute immunity to initiate and

pursue criminal prosecutions. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). These

claims should therefore be dismissed.

3. Expungement

Insofar as Plaintiff seeks expungement of his conviction, that relief is not available under

§ 1983. “The right to expungement of state records is not a federal constitutional right.” Eutzy

 

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v. Tesar, 880 F.2d 1010, 1011 (8th Cir. 1989) (quoting Duke v. White, 616 F.2d 955, 956 (6th Cir.

1980)). Furthermore, in the absence of some “special circumstance,” lower federal courts may

not order expunction of public records or order that a state conviction be expunged. See Cavett

v. Ellis, 578 F.2d 567, 568 (5th Cir. 1978); Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir.

1972). Plaintiff has asserted no special circumstances to warrant expungement of his records.

RECOMMENDATION

The Court recommends that Plaintiff’s claims against Judge Kinkeade and Stephen Miller

be dismissed with prejudice based on immunity. Plaintiff’s remaining claims should be

dismissed with prejudice until the Heck conditions are met. 

Signed June 23, 2005.

_____________________________________

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 copy of these findings, conclusions and

recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title

28, United States Code, Section 636(b)(1), any party who desires to object to these findings,

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 findings,

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 findings, 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, 106 S. Ct.

466, 472 (1985). Additionally, any 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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