United States District Court, S.D. Texas, Houston Division
TOMMY ALEXANDER, SR., Reg. #07193-035 Plaintiff,
LYNN HUGHES, et al., Defendants.
MEMORANDUM AND OPINION
H. BENNETT UNITED STATES DISTRICT JUDGE
Alexander, Sr., an inmate of the Federal Correctional
Institution in Beaumont, sued in February 2019, alleging
civil rights violations resulting from a denial of due
process. Alexander, proceeding pro se and in forma pauperis,
sues Lynn Hughes, United States District Judge; Thomas
Meehan, Jr., Federal Prosecuting Attorney; Jimmy D. Ashley,
Private Attorney at Law; Bradley Wilty, informant; Mike
Bristol, County Attorney; Kevin Blair, DEA Agent, SD/TX;
Becky Burks, Chief Probation Office, SD/TX; Charlie Clements,
DEA Agent; Charlie Mathis, DEA Agent; Jim Hook, Houston
Chronicle; John Doe, Editor of the Houston Chronicle; John
Doe, Owner of the Houston Chronicle; and Fran Faucet, Owner
of Fox News.
threshold issue is whether Alexander's claims should be
dismissed as frivolous. The Court concludes that
Alexander's claims lack merit and should be dismissed for
the reasons stated below.
28, 1993, a federal grand jury in Fort Myers, Florida
returned a one-count indictment charging Alexander and others
with conspiracy to possess with intent to distribute a
quantity of crack cocaine and cocaine. (Criminal Action
Number 2:93-CR-102-FTM-29CM). On March 18, 1994, the United
States District Court for the Middle District of Florida,
Fort Myers Division sentenced Alexander to a term of
imprisonment of 360 months, to be followed by a term of
asserts that Judge Hughes violated Alexander's rights by
finding Alexander guilty of a conspiracy of which Alexander
is the sole offender. Alexander explains that the other
conspirators have been acquitted, thereby making the
conspiracy nul and void. Alexander challenges the life
sentence that was given to a nonviolent drug offender.
Alexander asserts that his sentence was also illegal
concerning the issue that Alexander received a four (4) point
enhancement for a leadership roll on a one-man conspiracy.
Alexander states that he never sold drugs to the informant
Bradley Wiltz. Alexander asserts that the defendants are all
guilty of tainting the jury, tainting the evidence, and
pursuing an illegal sentence for a one-man conspiracy.
Alexander asserts that the prosecutor was not properly sworn
in to practice and that he falsely claimed that Alexander
possessed firearms. Alexander further asserts that the search
warrant was void because the abandoned car that was searched
did not belong to Alexander and was not on the search
seeks compensatory damages of $100, 000, 000.00.
federal court has the authority to dismiss an action in which
the plaintiff is proceeding in forma pauperis before service
if the court determines that the action is frivolous or
malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is
frivolous if it lacks an arguable basis in law or fact.
See Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997)). "A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation ofa
legal interest which clearly does not exist."
Davisv. Scott, 157F.3d 1003, 1005 (5th Cir. 1998)
(quoting McCormick v. Stalder, 105 F.3d 1059, 1061
(5th Cir. 1997)).
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the
Court must dismiss a complaint brought pursuant to 42 U.S.C.
§ 1983, when the civil rights action, if successful,
would necessarily imply the invalidity of a plaintiff s
conviction or sentence, unless the plaintiff demonstrates
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 a determination, or
called into question by a federal court's issuance ofa
writ of habeas corpus under 28 U.S.C. § 2254.
instance, the crux of Alexander's complaint is that he
was improperly charged and convicted of a conspiracy. The
complaint challenges the sufficiency of the evidence to
support the verdict. A ruling granting Alexander the relief
which he seeks would necessarily implicate the validity of
his conviction in Cause No. 2:93-CR-102-FTM-29CM, and
inevitably affect the duration of his confinement.
Heck, Alexander must demonstrate that his conviction
and sentence have been reversed, invalidated, or expunged
prior to bringing an action under § 1983. Heck,
512 U.S. at 486-87. Alexander cannot make such showing. He
has not alleged that his conviction in Cause Number
2:93-CR-102-FTM-29CM has been reversed, invalidated or
otherwise expunged. Until Alexander receives a ruling
declaring his sentence invalid, no action will accrue under
§ 1983. Id. at 488-89; Randall v.
Johnson, 227 F.3d300, 301 (5th Cir. 2000), cert,
denied, 532 U.S. 971 (2001) ("Because [plaintiff]
is seeking damages pursuant to § 1983 for
unconstitutional imprisonment and he has not satisfied the
favorable termination requirement of Heck, he is
barred from any recovery... .")• Alexander's
claims challenging his conviction for aggravated robbery are
"legally frivolous" within the meaning of sections
1915(e)(2) and 1915 A(b). Hamilton v. Lyons, 74 F.3d
99, 102-103 (5th Cir. 1996)("A § 1983 claim which
falls under the rule in Heck is legally frivolous
unless the conviction or sentence at issue has been reversed,
expunged, invalidated, or otherwise called into
claims are dismissed with prejudice to them being reasserted
when the Heck conditions are met. See Clarke v.
Stalder, 154 F.3d 186, 191 (5th Cir. 1998); Johnson
v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).