IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

COREY JOHNSON #127345 §

VS. § CIVIL ACTION NO. 6:24cv049

GERALD JEROME SMITH, Sr. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff, an inmate of the Gregg County Jail proceeding pro se and in forma pauperis

(IFP), filed this lawsuit alleging violations of his constitutional rights by his criminal defense 

attorney. The case was referred to the undersigned for findings of fact, conclusions of law, and 

recommendations for the disposition of the case. 

I. Relevant Background and Allegations

Plaintiff was a defendant before this Court in United States v. Johnson, no. 6:20cr77-1, in 

which he pleaded guilty on August 23, 2023. He has yet to be sentenced, and a motion to withdraw 

his plea is currently pending in that case.

In this case, Plaintiff sues his defense counsel for ineffective assistance in the criminal 

action, alleging that he is innocent of the criminal offense with which he was charged and that 

counsel tricked him into signing a plea agreement. He seeks repayment of his $30,000 legal fee 

and to withdraw his guilty plea. (Dkt. #1 at 4.)

II. Legal Standards and Preliminary Screening

Plaintiff is proceeding IFP. His pleading is thus subject to preliminary screening pursuant 

to 28 U.S.C. § 1915(e)(2), which requires sua sponte dismissal of a complaint if the Court finds it 

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frivolous or malicious, if it fails to state a claim upon which relief can be granted, or if it seeks 

monetary relief against a defendant who is immune from such relief. 

A complaint is frivolous if it lacks an arguable basis in law or fact. Samford v. Dretke, 562 

F.3d 674, 678 (5th Cir. 2009). The Fifth Circuit has held that a complaint lacks an arguable basis 

in fact when “the facts alleged are fantastic or delusional scenarios or the legal theory upon which 

a complaint relies is indisputably meritless.” Id. (quoting Harris v. Hegmann, 198 F.3d 153, 156 

(5th Cir. 1999) (internal quotation marks omitted)). In other words, during the initial screening 

under section 1915A, a court may determine that a prisoner’s complaint is frivolous if it rests upon 

delusional scenarios or baseless facts—and dismiss the complaint. See Henry v. Kerr County, 

Texas, 2016 WL 2344231 *3 (W.D. Tex. May 2, 2016) (“A court may dismiss a claim as factually 

frivolous only if the facts alleged are clearly baseless, fanciful, fantastic, delusional, or otherwise 

rise to the level of the irrational or the wholly incredible, regardless of whether there are judicially 

noticeable facts available to contradict them.”) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 

(1992)). 

Moreover, a complaint fails to state a claim upon which relief may be granted where it does 

not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus 

does not raise a right to relief above the speculative level. See Montoya v. FedEx Ground 

Packaging Sys. Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows 

the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See 

Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009). This plausibility standard is not akin to a probability standard; rather, 

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the plausibility standard requires more than the mere possibility that the defendant has acted 

unlawfully. Twombly, 550 U.S. at 556 (emphasis supplied). 

All well-pleaded facts are taken as true, but the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 

496 F. App’x 414 (5th Cir. 2012) (unpublished) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 

(5th Cir. 2005)). Crucially, while the federal pleading rules do not require “detailed factual 

allegations,” the rule does “demand more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action” will not suffice, nor does a complaint 

which provides only naked assertions that are devoid of further factual enhancement. Id. 

III. Discussion and Analysis 

Plaintiff’s claims and requested relief directly challenge the validity of his criminal 

conviction and are, therefore, not cognizable in a civil action. In Wilkinson v. Dotson, 544 U.S. 74, 

78–82 (2005), the Supreme Court reviewed Heck v. Humphrey, 512 U.S. 477 (1994), and its 

progeny. It explained that, under Heck, “a state prisoner’s section 1983 action is barred (absent 

prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target 

of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if 

success in that action would necessarily demonstrate the invalidity of confinement or its duration.” 

Id. at 81–82. The Dotson Court emphasized that habeas corpus is the exclusive remedy for 

prisoners who “seek to invalidate the duration of their confinement—either directly through an 

injunction compelling speedier release or indirectly through a judicial determination that 

necessarily implies the unlawfulness of the State’s custody.” Id. at 81. 

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This Heck bar against collateral challenges to standing convictions applies equally to cases 

challenging federal convictions pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 397 (1971). See Ortiz-Lopez v. Fed. Bureau of Prisons, Dir., 

830 F. App’x 127, 133 (5th Cir. 2020) (“The magistrate judge correctly concluded that Ortiz's 

[Bivens] claims challenging the validity of his federal conviction were barred by Heck because he 

has not shown that his ‘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.’”).

Here, Plaintiff expressly challenges the process that led to his conviction and seeks to 

withdraw his guilty plea. His claims are thus barred by Heck as long as his conviction stands.

Ordinarily, dismissal of a claim as barred by Heck is without prejudice to a plaintiff’s 

ability to re-file his civil claim if and when he succeeds in having his conviction overturned or 

invalidated through proper means. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) 

(“Because these dismissals do not put a defendant to the task of preparing for trial unnecessarily, 

or inflict other undue prejudice, they do not preclude a later claim meeting the preconditions for 

suit. A preferred order of dismissal would read: Plaintiffs claims are dismissed with prejudice to 

their being asserted again until the Heck conditions are met.”) In this case, however, Plaintiff’s 

claim fails for a second reason, which he cannot overcome by having his conviction set aside: the 

Defendant is not subject to suit under either Bivens or 42 U.S.C. § 1983.

To state a civil rights claim under Section 1983, a plaintiff must allege facts showing that 

he has been deprived of a right secured by the Constitution or laws of the United States, and that 

the deprivation was caused by someone acting under color of state law. Baker v. McCollan, 443 

U.S. 137 (1979). The requirement to show the defendant violated his rights while acting under 

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color of state law means the defendant must be a state actor. Moody v. Farrell, 868 F.3d 348, 351 

(5th Cir. 2017); Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). A private person, including 

a defense attorney, is not a state actor under 42 U.S.C. § 1983. Polk Cty. v. Dodson, 454 U.S. 312, 

318 (1981) (“[T]he Courts of Appeals are agreed that a lawyer representing a client is not, by virtue 

of being an officer of the court, a state actor ‘under color of state law’ within the meaning of 

§ 1983.”) Even appointed counsel who are paid by the government for representing their clients 

are not state actors for Section 1983’s purposes. Id. at 321. 

Likewise, a Bivens action provides a remedy for victims of alleged constitutional violations 

by federal government officials in their individual capacities. See Cronn v. Buffington, 150 F.3d

538, 540 (5th Cir. 1998); Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001). A 

criminal defense attorney is not a federal government official, so “claims against private and 

appointed federal defense counsel ‘are simply not cognizable in [a] Bivens action.’” Mann v. DNA 

Analyst, No. CV 22-1294, 2023 WL 2195770, at *13 (E.D. La. Feb. 1, 2023), report and 

recommendation adopted, No. CV 22-1294, 2023 WL 2185707 (E.D. La. Feb. 23, 2023) (quoting 

Solesbee v. Nation, No. 06-CV-0333, 2008 WL 244343, at *10 (N.D. Tex. Jan. 29, 2008)). Defense 

counsel is thus “not subject to suit under § 1983 or Bivens.” McLeod v. Knowles, 189 F. App’x 

297 (5th Cir. 2006). In fact, this Court has previously informed Plaintiff of this law in another suit 

he filed against a different attorney. Report and Recommendation at 5, Johnson v. Bass, No. 6:23-

445 (E.D. Tex. Oct. 23, 2023) (“As appointed counsel, Bass is not subject to suit under Bivens 

because he is not an official of the federal government.”).

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IV. Conclusion

For the reasons set forth above, Plaintiff’s claims against his former counsel fail to state a 

claim for which relief can be granted and would not be viable even if he could satisfy the Heck 

conditions. 

RECOMMENDATION

Accordingly, the undersigned recommends that Plaintiff’s suit be dismissed with prejudice 

for failure to state a claim for which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 13th day of May, 2024.

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