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Hicks v. Roll

United States District Court, S.D. Texas, Houston Division

June 11, 2019

COURTNEY LEE HICKS, TDCJ-CID #02224565 Plaintiff,
v.
RANDY ROLL, et al., Defendants.

          MEMORANDUM AND OPINION

          ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE

         Courtney Lee Hicks, a Texas Department of Criminal Justice inmate, sued in May 2019, alleging civil rights violations resulting from a denial of due process. Hicks has neither paid the $350.00 filing fee nor sought leave to proceed as a pauper. From his recent litigation history in state court, the Court presumes that he seeks leave to proceed in forma pauperis. Hicks, proceeding pro se, sues Randy Roll, judge of the 179th Judicial District Court of Harris County, Texas; Dionne S. Press, court-appointed trial counsel; Allen C. Isbell, court-appointed appellate counsel; Eric Kugler, assistant district attorney for Harris County; and Catherine Johnson, assistant district attorney for Harris County.

         The threshold issue is whether Hicks's claims should be dismissed as frivolous. The Court concludes that Hicks's claims lack merit and should be dismissed for the reasons stated below.

         I. Hicks's Allegations

         Hicks asserts that Judge Roll revoked Hicks's probation in April 2017, even though he knew about Hicks's psychiatric condition. Hicks asserts that Dionne Press represented Hicks at the revocation hearing and forged Hicks's signature on the plea agreement. Hicks asserts that Isbell rendered ineffective assistance on appeal by filing an Anders brief. Hicks asserts that Kugler falsely said that Hicks was ineligible for probation. He asserts that Catherine Johnson moved to revoke Hicks's probation.

         Online research reveals that Hicks was charged with aggravated assault with a deadly weapon in Cause Number 152006001010. On April 21, 2017, the court placed Hicks on deferred adjudication probation for six years and ordered Hicks to undergo treatment at the Substance Abuse Felony Punishment Facility ("SAFPF") - Peden. On July 14, 2017, the court granted the State's motion to adjudicate guilt. On July 19, 2017, the State moved to dismiss the criminal action following the amendment of the conditions of probation. Hicks was ordered to undergo treatment at SAFPF. The court granted this motion. On February 1, 2018, the court granted the State's motion to adjudicate guilt because Hicks had violated the terms of his deferred adjudication and had been discharged from the SAFPF. On March 14, 2018, the court granted the State's motion to dismiss the criminal action following the reinstatement of SAFPF. On July 31, 2018, the court granted the State's motion to adjudicate guilt because Hicks had been unsuccessfully discharged from the SAFPF on July 25, 2018. On September 27, 2018, the court granted the State's motion to adjudicate guilt and sentenced Hicks to a prison term of eleven years. Liberally construed, Hicks asks this Court to reverse his conviction and sentence.

         II. Standard of Review

         A 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 of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).

         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)).

         Hicks proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Under this standard, "[a] document filed pro se is 'to be liberally construed,' Estelle [v. Gamble, 429 U.S. 97, 106 (1976) ], and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."' Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         III. The Claim Challenging the Conviction and Sentence

         Hicks challenges the validity of his conviction and prison sentence. Under 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 plaintiffs 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 of a writ of habeas corpus under 28 U.S.C. § 2254.

         In this instance, the crux of Hicks's complaint is that he was improperly charged and convicted of aggravated assault with a deadly weapon. The complaint challenges the revocation of his deferred adjudication based on trial court error, prosecutorial misconduct, and ineffective assistance of his trial and appellate counsel. A ruling granting Hicks the relief which he seeks would necessarily implicate the validity of his conviction in Cause No. 152006001010, and inevitably affect the duration of his confinement.

         Under Heck, Hicks 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. Hicks cannot make such showing. He has not alleged that his conviction in Cause Number 152006001010 has been reversed, invalidated or otherwise expunged. Until Hicks receives a ruling declaring his sentence invalid, no action will accrue under § 1983. Id. at 488-89; Randell v. Johnson,227 F.3d 300, 301 (5th Cir. 2000), cert, denied,121 S.Ct. 1601 (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...."). Hicks's claims challenging his conviction for aggravated assault with a deadly weapon are "legally frivolous" within the meaning of sections 1915(e)(2) and 1915A(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, ...


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