Lowe v. Paxton et al, No. 4:2019cv00896 - Document 6 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, denying 3 MOTION for Appointment of Counsel, dismissing with prejudice 1 Complaint. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Lowe v. Paxton et al Doc. 6 United States District Court Southern District of Texas ENTERED March 18, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DAVID LEE LOWE, TDCJ #701500, § § § § § § § § § § Plaintiff, vs. KEN PAXTON, et al., Defendants. David J. Bradley, Clerk CIVIL ACTION NO. H-19-0896 MEMORANDUM OPINION AND ORDER State Prisoner's inmate David Civil Rights ("Complaint") (Docket Lee Lowe (TDCJ Complaint Entry No. #701500) under 1), 42 seeking has filed U.S.C. relief § from a 1983 his wrongful conviction and imprisonment in the Texas Department of Criminal Justice - Correctional Institutions Division ( "TDCJ") . Lowe has also filed an Application to Proceed In Forma Pauperis (Docket Entry No. 2) (Docket Entry No. 3). and a Motion for Appointment of Counsel Because Lowe is a prisoner who seeks leave to proceed in forma pauperis, the court is required to scrutinize the claims and dismiss t:he Complaint, in whole or in part, if it determines that the Complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." § 1915A (b) ; 2 8 U.S. C. § 1915 (e) ( 2) (B) . 28 U.S.C. After considering all of the pleadings, the court concludes that this case must be dismissed for the reasons explained below. Dockets.Justia.com I . Background Lowe is presently incarcerated by TDCJ at the Estelle Unit in Huntsville. 1 According to an exhibit attached to the Complaint, Lowe is currently in custody as a result of the following state court convictions: ( 1) indecency with a child ( 198 6) in Dallas County Cause No. F86-85990-SM; (2) burglary of a building (1994) in Dallas County Cause No. F-9400379-W; (3) forgery (1994) in Dallas County Cause (4) No. F-9433419-NW; and three solicitation of a minor under the age of 14 counts of online (2017) in Tarrant County Cause No. 14871170. 2 Lowe has filed this civil rights action under 42 U.S.C. against the following defendants: Paxton; (2) TDCJ Executive (1) 1983 § State Attorney General Ken Director Bryan Collier; (3) TDCJ Director Lorie Davis; (4) Estelle Unit Warden D. Dickerson; and (5) Attorney at connection Law with Barry the G. Johnson, charges 3 lodged who represented against him for Lowe in online solicitation of a minor under 14 years of age in Tarrant County 1 Complaint, Docket Entry No. 1, p. 1. For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic filing system, CM/ECF. 2 See Complaint, Exhibit C, Offense History for David Lee Lowe (TDCJ #701500), Docket Entry No. 1, p. 31; see also Texas Department of Criminal Justice Offender Information, located at: http://offender.tdcj.texas.gov (last visited March 15, 2019). 3 Complaint, Docket Entry No. 1, p. 9. -2- Cause No. 1487117D. 4 Lowe claims that he has been wrongfully prosecuted and convicted of "non-existent" criminal offenses in violation of his constitutional rights. 5 Lowe seeks his immediate release from prison and $250,000.00 in monetary damages from each defendant for his wrongful conviction and imprisonment. 6 concludes, however, The court that the Complaint must be dismissed because Lowe fails to articulate a claim upon which relief may be granted under 42 U.S.C. § 1983. II. Discussion Lowe sues the defendants in this case under 42 U.S.C. § 1983 for wrongful conviction and imprisonment. § by "To state a claim under 1983, a plaintiff must (1) allege a violation of rights secured the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Lefall v. Dist., 28 F.3d 521, 525 (5th Cir. 1994) To the extent prison, his "sole that Lowe federal seeks remedy" proceeding governed by 28 U.S.C. § 2254. 93 S. Ct. 1827, 1841 (1973). Sch. (citations omitted). his is Dallas Indep. immediate a federal release habeas from corpus See Preiser v. Rodriguez, The court declines to treat the 4 See Complaint, Exhibits D- F, Judgements of Conviction by Court - Waiver of Jury Trial, Docket Entry No. 1, p. 32. 5 Complaint, Docket Entry No. 1, p. 10. 6 Id. at 10, 25. -3- Complaint as a habeas corpus petition because, as Lowe admits in his pleadings, he has not yet completed state habeas corpus review of the Tarrant County convictions entered against him most recently in 2017. 7 As a result, he has not yet exhausted available state court remedies as required by 28 U.S.C. 2254 (b). § The Dallas County convictions entered against Lowe previously in 198 6 and 1994, appear to be barred from federal habeas corpus review by the governing § one-year statute of limitations. See 28 U.S.C. 2244 (d) (1). To the extent that Lowe seeks wrongful imprisonment under 42 U.S.C. monetary damages facts Dickerson showing had convictions. that anything to Paxton, do his 1983, the Complaint must be § dismissed for failure to state a viable claim. allege for Collier, with Lowe does not Davis, securing or his Warden underlying Absent any personal involvement or the enforcement of a constitutionally deficient policy, Lowe does not articulate a viable claim against these individuals, who appear to be named only in their capacity as supervisory officials. See Thompkins v. Belt, 828 F.2d 298, 304 (5th C:Lr. 1987). Although convictions Johnson represented entered against Lowe in him in Tarrant connection County, it with the is well established that criminal defense attorneys, even court-appointed ones, are not state actors for purposes of a suit under 42 U.S.C. 7 Id. at 5-7. -4- § 1983. See Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996) (citing Polk Cty. v. Dodson, 454 U.S. 312, 324-25 (1981); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988)). Because a civil rights complaint made against a criminal defense attorney contains no state action, such a complaint fails to state a claim upon which relief can be granted as a matter of law. See Hudson, 98 F.3d at 873; see also Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995). More importantly, a prisoner cannot recover monetary damages based on allegations imprisonment, or unlawfulness would of for "unconstitutional other render a harm caused conviction conviction by or actions sentence or whose invalid," without first proving that the challenged conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid determinations, by or a state called tribunal into question issuance of a writ of habeas corpus Heck v. Humphrey, Lowe's underlying 114 S. Ct. 2364, convictions authorized [under] 2372 have by a been make federal 28 U.S.C. (1994). not to such court's § 2254." Because none of set aside or invalidated, his civil rights claims are not cognizable under 42 U.S.C. § 1983. Cir. 1996) with See Johnson v. McElveen, 101 F.3d 423, 424 (5th (explaining that claims barred by Heck are "dismissed prejudice to their being asserted again until the Heck conditions are met"). Accordingly, his Complaint will be dismissed with prejudice as legally frivolous and for failure to state a -5- claim under 42 U.S.C. 1983. § III. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The plaintiff's Application to Proceed In Forma Pauperis (Docket Entry No. 2) is GRANTED. 2. Officials directed at to litigants account § TDCJ deduct the ($350.00) of periodic the David Inmate filing fee the Inmate from Lee Lowe installments Trust for (TDCJ pursuant Fund are indigent Trust Fund #701500), to 28 in u.s.c. 1915(b), and forward those funds to the Clerk of Court until the entire fee is paid. 3. Lowe's Prisoner U.S. C. § 198 3 Civil Complaint (Docket Entry No. with prejudice and purposes of 28 U.S.C. 4. Rights will § count 1) as under 42 is DISMISSED a strike for 1915(g). Lowe's Motion for Appointment of Counsel (Docket Entry No. 3) is DENIED. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. The Clerk will also send a copy of this Order to (1) the TDCJ - Office of the General Counsel, Capitol Station, P.O. Box 13084, Austin, Texas, 78711, Fax: 512-936-2159; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax: 936-437-4793; and (3) the Three Strikes List -6- at Three_Strikes@txs.uscourts.qov. SIGNED at Houston, Texas, on this~th SIM LAKE UNITED STATES DISTRICT JUDGE -7-
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