Opinion
SA-18-CA-405-XR (HJB)
10-13-2021
SHAWN ANTHONY BEAN, Plaintiff, v. STACY HIGGINS, ANTONIO GARCIA, SAN ANTONIO POLICE DEPARTMENT, MARK KING, and CLEOFUS MARSHALL, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HENRY J. BEMPORAD UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Xavier Rodriguez:
This Report and Recommendation concerns the Motion to Dismiss filed by the Defendant Bexar County District Attorney ("BCDA") in the above case. (Docket Entry 15.) This case was automatically referred to the undersigned pursuant to this Division's September 29, 2017, Standing Order. See 28 U.S.C. §§ 636(b), 1915(e). For the reasons set out below, I recommend that Defendant's motion (Docket Entry 15) be GRANTED and that this case be DISMISSED, or alternatively that Plaintiffs case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
I. Jurisdiction.
Plaintiff, proceeding pro se, filed a civil rights complaint asserting this Court's jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. (Docket Entry 3, at 3.) I have authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Background.
Plaintiffs complaint alleges that his claims arise out of an incident that occurred on November 15, 2016. (Docket Entry 3, at 4.) Plaintiff was indicted for allegedly participating in a drug transaction involving an undercover officer; he and was arrested for that charge on November 15, 2017. (See id) Plaintiff alleged that Defendants violated his First, Fourth, and Fourteenth Amendment rights by authorizing his arrest "without proper authorization/' and that they subjected him to racial profiling, harassment, malicious prosecution, and vindictive prosecution. (Docket Entry 1-1, at 4.)
At the time Plaintiff's complaint was filed, Bexar County court records showed that Plaintiff was awaiting trial on the criminal charge underlying his § 1983 complaint. Accordingly, the undersigned required Plaintiff to show cause why his claims should not be either dismissed or stayed pending a favorable resolution of the underlying criminal charges. (Docket Entry 4, at 2 (citing Heck v. Humphrey, 512 U.S. 477, 476-87 (1994), and Wallace v. Kato, 549 U.S. 384, 393-94 (2007))). When Plaintiff failed to address this issue in his response, the undersigned stayed his case pending resolution of the criminal case. (See Docket Entry 7.)
See State v. Bean, No. 2017CR1326 (187th Jud. Dist. Ct, Bexar Cty., Tex).
Plaintiff's case was stayed on June 19, 2018. (Docket Entry 7, at 2.) Three years later, Defendant BCDA moved to lift the stay and dismiss the case. (Docket Entry 15.) In the motion, BCD A indicates that Plaintiff was convicted of the underlying criminal case in 2019 after a nolo contendere plea, and that he has not sought any post-conviction relief. (Id. at 2; see also Docket Entry 15-1.) Because the criminal case had not been resolved in Plaintiff's favor, Higgins asked that the stay in this matter be lifted, and Plaintiffs case be dismissed under Heck. (Docket Entry 15, at 3-4.)
The Complaint named Assistant BCDA "Stacy Higgins," however, BCDA has no record of having employed that individual. (Id. at 1 n.2.)
The undersigned lifted the stay and ordered Plaintiff to respond to the motion to dismiss. (Docket Entry 16.) Plaintiff has not responded to the motion; he has apparently changed his address without notifying the Court. (See Docket Entries 17, 18.)
III. Analysis.
A. Defendant's Motion to Dismiss.
It is well settled that, under Heck, a plaintiff who has been convicted of a crime cannot recover damages for alleged violations of his constitutional rights if violations arose from the same facts attendant to the charge for which he was convicted, unless he proves "that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. at 486-87; see also Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (discussing Heck); Sappington v. Bartee, 195 F.3d 234, 235 (5th Or. 1999) (same). "Heck requires the district court to consider 'whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.'" Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (citation omitted). This requirement or limitation has become known as the "favorable termination rule." Sappington, 195 F.3d at 235. Ballard v. Burton, 444 F.3d 391, 396 (5th Cir. 2006). The rule applies to convictions on pleas of nolo contendere such as Plaintiff's in this case, see Calderon v. Bandera Cty., No. SA-14-CA-881-XR (PMA), 2014 WL 6769694, at *13-15 (W.D. Tex. Dec. 1, 2014), and it applies whether or not a plaintiff is imprisoned, see Clark v. City of San Antonio, 714 Fed.Appx. 446 (5th Cir. 2018).
Here, Plaintiffs complaint presents claims of false arrest, challenges to the grand jury indictment, vindictive prosecution, and malicious prosecution. (Docket Entry 3, at 4.) All these claims could potentially invalidate his underlying state criminal conviction, and all could have been addressed in the criminal proceedings themselves. In accordance with Wallace, the claims were stayed until the criminal proceedings were ended. See 549 U.S. at 393-94. Now that the proceedings are complete, Wallace provides the controlling rule:
If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended----If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal.Id. (citations omitted). Here, Plaintiff has been convicted of the charges associated with his challenged arrest and prosecution; the stayed suit would impugn that conviction. Defendant Higgins has sought dismissal under Heck (Docket Entry 15), and Plaintiff has not responded despite being ordered to do so (see Docket Entry 16). In such circumstances dismissal is appropriate.
B. Dismissal Under Federal Rule of Civil Procedure 41 (b).
Dismissal is alternatively appropriate for failure to prosecute under Federal Rule of Civil Procedure 41 (b). In the form he used to file his complaint, Plaintiff acknowledged the requirement that he keep his address current with the Clerk's office, and the warning that failure to do so "may result in the dismissal of my case." (Docket Entry 3, at 6.) Plaintiff signed the document immediately under this warning. (Id.) Despite this acknowledged requirement, Plaintiff has apparently failed to update his address, and accordingly has not responded to Higgins' motion to dismiss, or to the Court's order. (See Docket Entries 16, 17, and 18.) Indeed, Plaintiff has had no contact with the Court since his case was stayed more than three years ago.
In the stay order, Plaintiff was required to file an advisory regarding any favorable conclusion of criminal proceedings in his case. (Docket Entry 7, at 2.) He has not done so, apparently because the proceedings were not terminated in his favor.
Rule 41(b) authorizes the Court to involuntarily dismiss an action when "the plaintiff fails to prosecute or to comply with ... a court order." The Supreme Court has interpreted Federal Rule of Civil Procedure 41(b) to allow courts to dismiss actions sua sponte. "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statue but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962) (citations omitted). In this case, even if Heck did not require dismissal, Plaintiffs failure to update his address, to advise the Court of the status of criminal proceedings, and to respond to the Higgins' motion together would justify discretionary dismissal under Rule 41(b).
Normally, dismissal under Rule 41(b) is without prejudice. The undersigned notes that, "when a statute of limitations would bar re-prosecution of an action dismissed," the dismissal is treated as one with prejudice and "[t]he scope of the court's discretion is narrower." Brown v. King, 250 Fed.Appx. 28, 29 (5th Cir. 2007). Here, it does not necessarily appear that limitations would bar Plaintiffs claims: his § 1983 action for malicious or vindictive prosecution will not accrue until Plaintiffs conviction or sentence has been invalidated, see Heck, 512 U.S. at 489-90, and his false arrest claim would seem to have been subject to tolling during the period this case was stayed. Even if future litigation would be barred, however, discretionary dismissal is still appropriate. Given Plaintiffs failure to contact the Court in the two years since his conviction, there is a clear record of delay; additionally, as Plaintiffs failure to update his address has made it impossible to contact him, lesser sanctions than dismissal would not serve the interests of justice. Cf. Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (discussing factors Court must consider when statute of limitations would likely bar future litigation).
IV. Recommendation.
For the reasons set out above, I recommend that I recommend that Defendant's motion (Docket Entry 15) be GRANTED and that Plaintiffs case be DISMISSED, or alternatively that Plaintiff's case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
V. Instruction for Service and Notice for Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).