United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
plaintiff, Romarcus Dean Marshall (TDCJ #01043741), is an
inmate in custody of the Texas Department of Criminal Justice
- Correctional Institutions Division (“TDCJ”).
Marshall has filed a pro se civil rights complaint
under 42 U.S.C. § 1983, and he proceeds in forma
pauperis. Because this case is governed by the Prison
Litigation Reform Act, the Court is required to scrutinize
the pleadings and dismiss the complaint in whole or in part
if it is frivolous, malicious, or fails to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A. After
reviewing all of the pleadings as required, the Court
concludes that this case must be dismissed
for reasons that follow.
is currently serving a life sentence that he received in the
179th District Court for Harris County, Texas, as the result
of his conviction for capital murder in cause number
833880. That conviction was affirmed on direct
appeal in an unpublished opinion that summarized the evidence
presented during Marshall's jury trial, which showed that
Marshall was charged as a party to the murder of Anastacio
Sandoval during an armed robbery. See Marshall v.
State, No. 07-01-0426-CR, 2003 WL 23024515, *1-3 (Tex.
App. - Amarillo Dec. 29, 2003, pet. ref'd). Marshall
sought a federal writ of habeas corpus to challenge that
conviction under 28 U.S.C. § 2254, but his petition was
dismissed with prejudice after the court determined that
Marshall's claims were without merit and that he was not
entitled to relief. See Marshall v. Stephens, Civil
No. H-05-4302 (S.D. Tex. Jan. 18, 2007).
now sues two criminal defense attorneys, including the public
defender who was appointed to represent him in cause number
833880 (Kyle B. Johnson) and another public defender (Wayne
T. Hill), who was appointed to represent Marshall's
co-defendant, James Hanes. Marshall also sues the prosecutor,
Assistant District Attorney Claire Connors, and the Honorable
Michael J. Wilkinson, who presided over Marshall's
explains that Hanes, who actually shot and killed Sandoval
during the robbery, agreed to plead guilty to the lesser
charge of murder and received a 25-year
sentence. Marshall alleges that Johnson was
“swayed” by Hill and Connors to not call Hanes as
a witness on Marshall's behalf. By depriving him of
Hanes's testimony, Marshall contends that Johnson and
Hill conspired with Connors and Wilkinson to secure his
conviction in violation of his federal constitutional
rights.Marshall seeks monetary damages as well as
declaratory and injunctive relief under 42 U.S.C. § 1983
for the constitutional violations that resulted in his
complaint fails to state a claim and must be dismissed for
several reasons. Marshall's conclusory allegations of
conspiracy are insufficient to demonstrate liability on the
part of Judge Wilkinson, who is entitled to absolute immunity
from claims arising out of acts performed in the exercise of
their judicial functions. See Stump v.
Sparkman, 435 U.S. 349, 355 (1978). It is also well
established that prosecutors such as Claire Connors are
entitled to absolute immunity from civil rights claims for
actions taken in the scope of their duties in initiating and
pursuing a criminal prosecution. See Van de Kamp v.
Goldstein, 555 U.S. 335, 343 (2009) (citing Burns v.
Reed, 500 U.S. 478, 492 (1991)); see also Imbler v.
Pachtman, 424 U.S. 409, 431 (1976) (holding that
prosecutors are absolutely immune from a civil suit for
damages for initiating a prosecution and in presenting the
state's case). Likewise, criminal defense attorneys, even
those such as Johnson and Hill who are appointed by the state
to represent indigent defendants, are not state actors who
can be held liable under 42 U.S.C. § 1983. See
Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996)
(citing Polk County v. Dodson, 454 U.S. 312, 324-25
(1981); Mills v. Criminal Dist. Court No. 3, 837
F.2d 677, 679 (5th Cir. 1988)).
importantly, Marshall cannot recover damages under 42 U.S.C.
§ 1983 based on his allegation that his conviction was
obtained unlawfully because his claim is barred by Supreme
Court precedent. To recover damages based on allegations of
“unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a [civil rights] plaintiff
must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determinations, or called into question by a federal
court's issuance of a writ of habeas corpus [under] 28
U.S.C. § 2254.” Heck v. Humphrey, 512
U.S. 477, 486-87 (1994). A claim for damages that bears a
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under 42 U.S.C. § 1983.
Id. Therefore, if a judgment in favor of the
plaintiff would “necessarily imply the invalidity of
his conviction or sentence, ” then the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
noted above, Marshall's conviction was affirmed on appeal
and he remains incarcerated pursuant to the judgment in
Harris County cause number 833880. Marshall does not allege
or show his sentence has been invalidated or otherwise set
aside by an authorized state tribunal or by a federal habeas
corpus proceeding under 28 U.S.C. § 2254. Absent a
showing that the disputed conviction has been invalidated or
set aside, the rule in Heck precludes any claim for
damages. Any claim for declaratory or injunctive relief is
likewise barred by the rule in Heck. See Clarke
v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998). It
follows that Marshall's civil rights claims are not
cognizable under 42 U.S.C. § 1983 at this time and that
his complaint must be dismissed with prejudice. See
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996)
(explaining that claims barred by Heck are
“dismissed with prejudice to their being asserted again
until the Heck conditions are met”).
on the foregoing, the Court ORDERS as
1. The plaintiffs complaint is DISMISSED
with prejudice under 28 U.S.C. § 1915(e)(2)(B) ...