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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL HOUSEHOLDER, 905336, )

Plaintiff, )

)

v. ) No. 3:05-CV-1575-M

)

DALLAS COUNTY, and TEXAS DEPT. OF )

CRIMINAL JUSTICE, )

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 is currently confined in the Texas Department of Criminal Justice, Correctional

Institutions Division. He 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

Dallas County and the Texas Department of Criminal Justice.

II. Background

Plaintiff states that in March, 2005, he was sentenced to one year in state jail. He argues

Defendants have not properly credited his sentence with time he previously served in shock

probation. He states that Defendants have given him a release date of October 7, 2005. Plaintiff

claims this date is ninety days past the date he should be released. Plaintiff seeks credit for the

 

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time he served on shock probation, or money compensation for false imprisonment. 

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. Humphrey

Plaintiff seeks money damages for false imprisonment. In Heck v. Humprey, 512 U.S.

 

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477 (1994), the Supreme Court held that a § 1983 claim attacking the constitutionality of a

conviction or imprisonment 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, 512 U.S. at 486-87. Heck also bars damage claims, which, if successful, would

necessarily imply the invalidity of a conviction or sentence. Hamilton v. Lyons, 74 F.3d 99, 103

(5th Cir. 1996). 

Plaintiff claims that he is being falsely imprisoned are clearly connected to the legality of

his present confinement. A finding in favor of Plaintiff would imply the invalidity of his

sentence. Plaintiff, however, has not alleged that his conviction has been reversed, expunged, or

otherwise invalidated. 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. Habeas Corpus

Plaintiff’s complaint seeks time credit for time spent on shock probation. Plaintiff

therefore seeks earlier release from custody. 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); Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (stating that a petition for 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,

 

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31 (5th Cir. 1995) (per curiam) (same). To the extent that Plaintiff seeks habeas relief, therefore,

these claims are dismissed without prejudice to Plaintiff filing a petition for writ of habeas

corpus.

RECOMMENDATION

The Court recommends that Plaintiff’s claims under 42 U.S.C. § 1983 be dismissed with

prejudice until the Heck conditions are met. The Court further recommends that Plaintiff’s

habeas corpus claims be dismissed without prejudice to Plaintiff filing a petition for writ of

habeas corpus.

Signed August 17, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

 

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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 Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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