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Albert v. Zehetner

United States District Court, E.D. Texas, Sherman Division

January 8, 2018

VERLEE ALBERT, JR.
v.
JIM ZEHETNER

          Nowak, Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On November 6, 2017, the amended report of the Magistrate Judge (Dkt. #24) was entered containing proposed findings of fact and recommendations that Defendant Jim Zehetner's Motion to Dismiss and to Declare Plaintiff Vexatious (Dkt. #5) be granted. Having received the amended report and recommendation of the Magistrate Judge, having considered Plaintiff's Motion to Amend Original Complaint (Dkt. #25), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's amended report (Dkt. #24) should be adopted.

         BACKGROUND

         The underlying facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety. Accordingly, the Court sets forth only those facts pertinent to Plaintiff Verlee Albert, Jr.'s objections.

         Plaintiff Verlee Albert, Jr. was convicted of aggravated robbery and sentenced to twenty-three years' imprisonment on August 28, 2007; his conviction was affirmed by the Fort Worth Court of Appeals on June 5, 2008. Albert v. State, No. 2-07-373-CR, 2008 WL 2330941, at *2 (Tex. App.-Fort Worth June 5, 2008, writ ref'd). Albert shoved an eighty-one year old greeter at Walmart while he attempted to push a shopping cart of stolen merchandise out of the store. On November 11, 2008, Albert filed a petition for habeas corpus relief under 28 U.S.C. § 2254, which was denied on July 19, 2010. Verlee Albert, Jr. v. 362nd District Court, et al., 4:08-CV-418 (E.D. Tex. July 19, 2010). Albert also filed a civil rights suit against Defendant Jim Zehetner in the Eastern District of Texas, Sherman Division, on March 16, 2009, wherein he argued “that Officer Zehetner fabricated his report.” Albert v. Zehetner, No. CIV.A. 4:09CV125, 2009 WL 1605772, at *1 (E.D. Tex. June 5, 2009). Judge Richard A. Schell, upon recommendation of Magistrate Judge Don D. Bush, dismissed Albert's claim against Defendant Jim Zehetner on June 5, 2009, finding that it was barred under Heck v. Humphrey, 512 U.S. 477 (1994).[1] The court found:

a judgment in [Albert's] favor against Officer Zehetner for fabricating the evidence would necessarily imply the invalidity of his conviction. He has not shown that his conviction or sentence has been invalidated. Indeed, he filed the two petitions for a writ of habeas corpus in this Court in an attempt to overturn the conviction. Consequently, the lawsuit is barred by Heck. The Plaintiff's lawsuit fails to state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact.

Id. at *2.

         On March 30, 2017, Albert filed the instant suit against Defendant Jim Zehetner in state court, seeking “a declaration that acts and omissions described herein violated [Plaintiff's] rights….[a] permanent injunction ordering [Officer Zehetner] [to admit] that he fabricated a government document” (Dkt. #1-1 at p. 3). Albert once again alleges that Officer Zehetner, an officer in the Hickory Creek Police Department, arrested Albert and subsequently falsified a police report “in cause no. F-2007-0838-C” (Dkt. #1-1 at p. 6). Albert asserts that the instant case is filed “to redress the deprivation under color of state law of the rights secured by the Due Course Of Law, in conjunction with the Constitution of the United States” (Dkt. #1-1 at p. 4). On June 29, 2017, Officer Zehetner timely removed the case to the Eastern District of Texas, Sherman Division (Dkt. #1). The next day, on June 30, 2017, Defendant filed a Motion to Dismiss and to Declare Plaintiff Vexatious (Dkt. #5). Albert responded to the Motion to Dismiss on July 28, 2017 (Dkt. #11). Officer Zehetner filed a reply on August, 4, 2017 (Dkt. #13). On August 14, 2017, Albert filed a sur-reply (Dkt. #15). On August 11, 2017, Albert requested the Court stay litigation while Albert was assigned to a new prison unit (Dkt. #14); the Court granted this request on August 16, 2017 (Dkt #16). The stay was lifted on August 23, 2017 (Dkt. #18). On August 31, 2017, Albert filed a second sur-reply to Officer Zehetner's Motion to Dismiss (Dkt. #19).

         On November 6, 2017, the Magistrate Judge entered an amended report and recommendation (Dkt. #24), [2] recommending that Officer Zehetner's Motion to Dismiss and to Declare Plaintiff Vexatious (Dkt. #5) be granted. Specifically, The Magistrate Judge found that Plaintiff's claims under § 1983 were barred by Heck v. Humphrey; and Plaintiff was unable to state a claim under the Texas Penal Code, Code of Criminal Procedure, or Texas Constitution in this proceeding. Additionally, because Plaintiff's prior fifteen cases related to the same issues and overall, established a pattern that demonstrates that Plaintiff seeks “to harass the many parties involved, and to assert frivolous arguments, ” the Magistrate Judge recommended that Plaintiff be sanctioned from proceeding in forma pauperis with any new civil action in the Eastern District of Texas regarding claims related to his 2007 criminal conviction for aggravated robbery unless he first obtains leave from a district judge of this Court. On November 20, 2017, Albert filed Plaintiff's Motion to Amend Original Complaint (Dkt. #25).[3] On December 4, 2017, Officer Zehetner filed Defendant's Objections to Plaintiff's Response to Magistrate Judge's Amended Report and Recommendation (Dkt. #27). On December 13, 2017, Albert filed an Objection to Defendant Response to Magistrate Judge Recommendation Plaintiff's Response to Recommendation (Dkt. #28).

         OBJECTIONS

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). Broadly construing his objections, Albert objects to the Magistrate Judge's characterization of his claims as Heck-barred (Dkt. #25 at p. 3), and the Magistrate Judge's recommendation that he be declared a vexatious litigant (Dkt. #25 at p. 6).

         1. Heck Bar

         Albert asserts that the Magistrate Judge incorrectly found his claims were Heck-barred because he “is not challenging his conviction; and does not mention any relief pertaining to his conviction, ” and instead, he “presents to the court's [sic] that it was a crime committed during [Albert's] arrest by Officer Zehetner” (Dkt. #25 at p. 3). Plaintiff asserts that he “challenges the objective reasonableness of his arrest, ” namely that “Officer Zehetner arrested him and made false statements, and falsified records” (Dkt. #25 at pp. 3-4). Plaintiff claims that Officer Zehetner's alleged false statements caused him to be prosecuted and ultimately convicted for aggravated robbery (Dkt. #25 at p. 4). Broadly construing Plaintiff's pleadings, ...


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