578 F.2d 567 (5th Cir. 1978), 76-3118, Cavett v. Ellis

Docket Nº:76-3118.
Citation:578 F.2d 567
Party Name:Joe Oliver CAVETT, Plaintiff-Appellant, v. Tom ELLIS, County Clerk of Dallas County, and Bill Shaw, District Clerk of Dallas County, Defendants-Appellees.
Case Date:August 17, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 567

578 F.2d 567 (5th Cir. 1978)

Joe Oliver CAVETT, Plaintiff-Appellant,


Tom ELLIS, County Clerk of Dallas County, and Bill Shaw,

District Clerk of Dallas County, Defendants-Appellees.

No. 76-3118.

United States Court of Appeals, Fifth Circuit

August 17, 1978

Michael Lowenberg, Dallas, Tex. (Court-appointed not under Act), for plaintiff-appellant.

John B. Tolle, Asst. Dist. Atty., Henry Wade, Crim. Dist. Atty., Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Page 568

Before THORNBERRY, RONEY, and HILL, Circuit Judges.

THORNBERRY, Circuit Judge.

The appellant, Joe Oliver Cavett, brought this suit under 42 U.S.C. § 1983 seeking (1) a declaratory judgment that five state criminal convictions obtained against him 1 are unconstitutionally invalid, and (2) an order directing clerks of various courts to expunge the records of conviction. The appellant has fully discharged the sentences resulting from the five challenged convictions. 2 The district court dismissed the complaint for failure to state a claim on which relief can be granted. See Rule 12(b)(6), Fed.Rules Civ.Proc. Finding ourselves bound by Fifth Circuit precedent, we affirm.

Although previous Fifth Circuit cases have not always distinguished between the two distinct forms of relief requested by the appellant, we will discuss the request for expungement separate from the request for a declaratory judgment.

  1. Expungement.

    In Rogers v. Slaughter, 469 F.2d 1084 (5 Cir. 1972), the plaintiff argued that a state criminal conviction had been unconstitutionally obtained because he had not been advised of the right to counsel. The district court, agreeing with the plaintiff, ordered that the record of conviction be struck and expunged from various public records. 3 In vacating this part of the district court's order we said:

    The District Court, nevertheless, went too far in ordering the expunction of the official public records. This remedy gave the defendant more relief than if he had been acquitted.

    Carrying and discharging a concealed weapon does constitute a crime in Jacksonville, and the Court's privilege to expunge matters of public record is one of exceedingly narrow scope. See, e. g., Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966); Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). Public policy requires here that the retention of records of the arrest and of the subsequent proceedings be left to the discretion of the appropriate authorities. The judicial editing of history is likely to produce a greater harm than that sought to be corrected.

    469 F.2d at 1085.

    It is therefore clear that the Rogers holding prohibits a lower federal court from ordering the editing of public records in the general case. Since Cavett has alleged no special circumstance that would take him out of the Rogers rule, the district court was clearly correct in dismissing Cavett's request for the expunction of public records.

  2. The Declaratory Judgment.

    We believe that the district court was also correct in dismissing the request for a declaratory judgment since under Fifth Circuit precedent an action under 42 U.S.C. § 1983 cannot be used to attack the integrity of a state criminal conviction.

    In Carter v. Hardy, 526 F.2d 314 (5 Cir. 1976) (Carter I), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976), the plaintiff had been convicted of two state criminal offenses and had satisfied the sentences. The plaintiff...

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