United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
plaintiff, Verten Dodson III (TDCJ #01485604), is currently
incarcerated by the Texas Department of Criminal Justice -
Correctional Institutions Division ("TDCJ") at the
Estelle Unit in Huntsville. Dodson has filed a Prisoner Civil
Rights Complaint under 42 U.S.C. § 1983
("Complaint") (Docket Entry No. 1) against his
former criminal defense counsel, Duke Hildreth. Dodson has
also filed an Application to Proceed In Forma Pauperis
(Docket Entry No. 2), requesting leave to proceed without
prepayment of the filing fee. Because Dodson is incarcerated
the court is required to scrutinize the claims and dismiss
the 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." 28 U.S.C. § l9l5A(b). After considering
all of the pleadings the court concludes that this case must
be dismissed for the reasons explained below.
is presently serving a 3 0-year prison sentence that he
received as the result of a murder conviction entered against
him in Travis County Cause No. D-l-DC-07-300805,
jury's guilty verdict was affirmed on direct appeal.
See Dodson v. State. No. 03-08-00108-CR, 2008 WL
4823178 (Tex. App. - Austin Nov. 7, 2008, no pet.)
(unpublished). Dodson's applications for state and
federal habeas corpus relief from that conviction have been
unsuccessful. See Dodson v. Thaler, Civil No.
A-10-099, 2011 WL 2582725 (W.D. Tex. June 28, 2011); see
also Ex parte Dodson, Writ No. 72, 525-08 (Tex. Crim.
App. June 12, 2013) (barring Dodson from filing any further
applications because of his repeated abuse of the writ).
now sues Duke Hildreth, who served as Dodson's criminal
defense counsel when his underlying murder conviction was
entered. Dodson contends that Hildreth violated his
constitutional rights under the Sixth Amendment by failing to
provide effective assistance of counsel. Invoking 42
U.S.C. § 1983, Dodson seeks $10 million in damages for
his wrongful conviction.
state a claim under § 1983, a plaintiff must (1) allege
a violation of rights secured by 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. Dallas Indep. Sch. Dist.,
28 F.3d 521, 525 (5th Cir. 1994) (citations omitted). In
other words, the alleged violation "must be caused by
the exercise of some right or privilege created by the State
or by a rule of conduct imposed by the State or by a person
for whom the State is responsible." Lugar v.
Edmundson Oil Co., 102 S.Ct. 2744, 2753 (1982). This
means that "the party charged with the deprivation must
be a person who may fairly be said to be a state actor,
" that is, one who is in fact a state official, one who
"has acted with or has obtained significant aid from
state officials, " or one whose "conduct is
otherwise chargeable to the State." Id.
sues the defendant for actions taken while he was acting as
Dodson's criminal defense attorney. Criminal defense
attorneys, even court-appointed ones, are not state actors
for purposes of a suit under 42 U.S.C. § 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 against a criminal defense attorney does not allege
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).
Dodson cannot obtain money 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, " without first
proving that the challenged 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, 114
S.Ct. 2364, 2372 (1994) .
evident that the challenged conviction has not been set aside
or invalidated. Court records confirm that Dodson's
allegations of ineffective-assistance were addressed at
length and rejected on federal habeas review. See Dodson
v. Thaler, Civil No. A-10-099, 2011 WL 2582725, at *7-10
(W.D. Tex. June 28, 2011). Because Dodson has not
demonstrated that his conviction has been invalidated, his
civil rights claims are not cognizable under 42 U.S.C. §
1983 and 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").
Accordingly, this case will be dismissed for failure to state
a claim upon which relief may be granted for purposes of 28
U.S.C. § l9l5A(b).
Conclusion and Order
on the foregoing, the court ORDERS as
1. The Application to Proceed In Forma Pauperis filed by the
plaintiff, Verten Dodson III, (Docket Entry-No. 2) is
2. The TDCJ Inmate Trust Fund is ORDERED to
deduct funds from the inmate trust account of Verten Dodson
III (TDCJ #01485604) and forward them to the Clerk on a
regular basis, in compliance with the provisions of 28 U.S.C.