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holding that success on "allegations challenging his counsel's conduct ... would undermine the validity of his conviction"
Summary of this case from Douglas v. LouisianaOpinion
3:01-CV-1239-M.
August 22, 2001
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 case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an action brought against the United States under the Federal Tort Claims Act for wrongful acts and omissions committed by federal agents in their official capacities. 28 U.S.C. § 1331, 1346(b), 2671-2680(h). Insofar as Plaintiff sues the federal agents in their individual capacities, the action is construed as one brought pursuant toBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Parties: Plaintiff is a federal inmate presently incarcerated at the Federal Medical Center in Fort Worth, Texas. Defendant is the United States of America. The court has not issued process in this case.
Statement of Case: The complaint requests monetary damages for false arrest, false imprisonment and abuse of process stemming from Plaintiff s 1993 arrest and subsequent conviction in United States v. Pearson, 3:93cr189-H (N.D. Tex., Dallas Div.).
The material facts on which Plaintiff's complaint is predicated are as follows: On April 23, 1993, federal agents twice arrested Plaintiff — once at his apartment complex and then at a local convenience store. Following the second arrest, Plaintiff was taken to the Dallas FBI office and interrogated by Special Agent Paul Shannon, among others. During the interrogation Plaintiff admitted robbing a bank with a weapon. Later that day a complaint was filed against Plaintiff, charging him with a violation of 18 U.S.C. § 2113(a)(d) and 924(c)(1). On May 19, 1993, a two-count indictment was filed against Plaintiff, charging him with a violation of the above sections. On June 16, 1993, the U.S. Attorney's office filed an information charging Plaintiff with three counts: (1) a violation of 18 U.S.C. § 2113(a)(d); (2) a violation of 18 U.S.C. § 924(c)(1); and (3) attempt. Plaintiff waived the filing of an indictment in open court and, the following day, he pled guilty pursuant to a plea agreement. He subsequently insisted that counsel file a motion to withdraw the guilty plea. On August 12, 1993, the trial court denied the motion to withdraw and sentenced Plaintiff to 300 months imprisonment. The Fifth Circuit Court of Appeals affirmed the conviction and sentence on September 21, 1994. (Complaint at 2-3).
Next Plaintiff filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which the trial court denied. On December 23, 1998, the Fifth Circuit Court of Appeals denied a certificate of appealability.
Subsequently, on February 18, 2001, Plaintiff filed an administrative claim with the FBI, alleging three tort claims — false arrest, false imprisonment and abuse of process. The FBI denied the claim on March 20, 2001. (Complaint at 4).
Findings and Conclusions: Although Plaintiff paid the $150.00 filing fee, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998), cert. denied, 527 U.S. 1041 (1999) (the statutory screening provision under § 1915A applies to all prisoners' actions against governmental entities, officers and employees, regardless of whether the prisoner is proceeding in forma pauperis). 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 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).
Section 1915A(b) provides for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (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, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Plaintiff seeks to bring an action under the Federal Tort Claims Act (FTCA). "The FTCA applies a two-year statute of limitations from the accrual date of the cause of action."Brown v. Nations Bank Corp., 188 F.3d 579, 589 (5th Cir. 1999), cert. denied, 530 U.S. 1274 (2000). "A cause of action accrues, under federal law, `when the plaintiff knows of or has reason to know of the injury which is the basis of the action.'"Id. at 589-90 (quoting Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994)).
Plaintiff's allegations of false arrest, false imprisonment, and abuse of process rest on events that occurred beginning on April 23, 1993, until on or about August 12, 1993. Plaintiff filed an administrative claim with the FBI on February 18, 2001, more than seven years after the events took place. The FBI denied Plaintiff's claim on March 20, 2001. (Complaint at 4). Because Plaintiff presented his administrative claim more than two-years after the events giving rise to the complaint, they are barred by the two-year statute of limitations. See Brown, 188 F.3d at 590 (affirming dismissal of assault, false imprisonment, and invasion of privacy claims because they were presented to the federal agency more than two years after the events giving rise to the complaint).
Liberally construing the complaint to raise a Bivens claim against Special Agent Shannon and other agents, the claim is also barred by the statute of limitations. See Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998) ( pro se action presenting the facts necessary for a Bivens action should not be dismissed unless the party has been granted leave to amend the complaint to raise a Bivens claim). A Bivens action is controlled by the applicable state statute of limitations.Brown, 188 F.3d at 590. The Fifth Circuit has held that the statute of limitations on a Bivens claim is two years. Id. Here, the limitation period began to run on April 23, 1993, the date on which Plaintiff was arrested, and expired two years later. Therefore, any Bivens claim is barred by the limitation period.
Assuming arguendo that Plaintiff's claims were not barred by the two-year limitation period, they would still fail on the merits. Under Fifth Circuit case law, the return of a bill of indictment breaks the chain of causation for an allegedly false arrest — i.e., the indictment constitutes a finding of probable cause. See Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (holding that if the factual basis for an arrest is placed before an independent intermediary such as a grand jury, the grand jury's decision in returning an indictment breaks the chain of causation for an action predicated on false arrest, thereby insulating the arresting officer from a false arrest suit).
Next Plaintiff alleges that counsel failed to discuss with him the plea agreement and any viable defense, and that the trial court misinformed him that he could receive a sixty-year sentence. Although Plaintiff was represented by the Federal Public Defender's office in the underlying criminal action, under the adversarial jurisprudential system in this country, his attorney clearly was not acting as an agent of the FBI. The claims challenging his counsel's representation fall within the purview of the Sixth Amendment. Aside from any issue of immunity or federal jurisdiction, Plaintiff's allegations challenging his counsel's conduct — if sustained — would undermine the validity of his conviction and, therefore, are governed by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or present confinement 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 writ of habeas corpus." 512 U.S. at 486-87, 114 S.Ct. at 2372. Heck has been extended to Bivens actions. See Cronn v. Buffington, 150 F.3d 538, 541 (5th Cir. 1998) (citingStephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994)).
The Supreme Court explained:
when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Id. at 487, 114 S.Ct. at 2372-73.
As noted above Plaintiff's conviction and sentence in No. 3:93cr189-H was affirmed on direct appeal; the district court subsequently denied his § 2255 motion. Any attempt to overturn his conviction at this time would probably be precluded as an abusive second or successive § 2255 motion. See 28 U.S.C. § 2255 and 2244(b)(2)(A) and (B). More to the point such a motion would be barred by the one-year limitation period. See § 2255. Therefore, any claim challenging Plaintiff's 1993 conviction, including any claim of ineffective assistance of counsel, are likewise frivolous.
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(i).
A copy of this recommendation will be mailed to Plaintiff.
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.