Dupard v. Harper
| Decision Date | 02 September 2014 |
| Docket Number | CIVIL ACTION NO. 14-0050 SECTION "A" (4) |
| Parties | KERRY CHARLES DUPARD, SR. v. JAMES HARPER ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as applicable, 42 U.S.C. § 1997e(c)(1) and (2). Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing.
The plaintiff, Kerry Charles Dupard, Sr. ("Dupard") is currently being held at the Avoyelles Bunkie Detention Center in Evergreen Louisiana. He filed this pro se and in forma pauperis complaint pursuant to 42 U.S.C. § 1983 against the defendants, Orleans Parish Public Defender James Harper, Orleans Parish Criminal Court Judge Darryl Derbigny, Assistant District Attorney Virginia D. Miller, Assistant District Attorney William Jorden, U.S. Marshal Task Force Officers Wayne Griffiths, Philip DeSalvo, Harley Smith, and Matt Glapion, Deputy Supervisor U.S. Marshal Doug Farrell, Deputy U.S. Marshals Michael Shesby, Raymond Smiles, and Brian Fair, Orleans Parish K-9 Unit Police Officer Harold Rich and Hunter, Orleans Parish Police Officers N. Addisonand A. Harris, Orleans Parish Police Sergeant R. Fayard, and Orleans Parish Detectives Brian Elsensohn, Scott Seymour, and Raymond Hughes, in both their individual and official capacities. See Rec. Doc. 3.
More specifically, Dupard alleges that on January 27, 2012, at approximately 10:53 a.m., defendant members of the Orleans Police Department, lead by Detective Raymond Hughes, and defendant members of the U.S. Marshal Service, lead by Deputy U.S. Marshal Brian Fair, including the six (6) defendant U.S. Marshals and Deputy Supervisor Marshal Doug Farrel, "banned together as one unit", entered his premises with excessive force, and violated his Fourth Amendment right against illegal search and seizure. Id. Dupard alleges that the defendants illegally searched his home and arrested him for failure to register as a sex offender without an arrest warrant, search warrant, probable cause, or exigent circumstances. Id.
Dupard further alleges that the defendants committed the crime of criminal damage of private property because they deliberately damaged a section of his six (6) foot wooden fence to gain entry into his yard, broke open the security screen door, leaving it warped and unusable, and forcibly kicked the front door open, leaving it beyond repair. Id. Dupard contends that one-year-old Toni Dupard, two-year-old Kerrion Turner, and their mother, Darrylnish Turner, were all present and scared, as they were all about fifteen (15) feet away from the two (2) doors when the units entered. Id.
Next, Dupard alleges that defendants, Assistant District Attorneys Virginia D. Miller and William Jordan, unconstitutionally instituted a Bill of Information as to the charge of failure to register as a sex offender, without obtaining jurisdiction to prosecute the offense because the offense was committed in St. Bernard Parish. Id.
Dupard further alleges that defendant, Orleans Parish Public Defender James Harper ("Harper"), violated his right to effective assistance of counsel at every stage during the criminal proceeding, including his right to present a defense and a right to a fair trial. Id. Dupard alleges that Harper committed malpractice by intentionally failing to file any pretrial motions in compliance with Dupard's right to due process, failing to investigate all reports, affidavits, and warrants concerning the Fourth Amendment violation and the lack of jurisdiction in his case, and failing to present mitigating evidence during the pretrial stages of the criminal proceedings, which consisted of two (2) sworn affidavits of material witnesses to the excessive force used in his arrest Id. at 19-20.
Finally, Dupard alleges that defendant, Judge Darryl Derbigny, failed to maintain the integrity of the judicial proceeding by accepting a plea of guilty for the offense of failing to register as a sex offender for which the State did not have legal jurisdiction to prosecute. Id. at 19.
In his complaint, Dupard seeks injunctive as well as declaratory relief including: (1) an Order from this Court declaring that the claims violated his rights under the Constitution and law of the United States; (2) A preliminary and permanent injunction ordering all the above mentioned defendants not to retaliate against him for exercising his constitutional right to redress his grievance; (3) the Court to issue a Temporary Restraining Order ("TRO") against each defendant, prohibiting them from having any contact with him, directly or indirectly through their agencies, directly through their employment, or otherwise; (4) compensatory damages for loss wages, child support, physical incarceration, and mental damages from being incarcerated in the amount of $2 million against each defendant, jointly and severally; (5) punitive damages in the amount of $2 million against each defendant jointly and severally; (6) trial by jury on all issues triable by jury; (7) costs resulting from this suit; and (7) any additional relief the Court deems just, proper, and equitable. Id.at 9, 15.
When a prisoner files an in forma pauperis civil action seeking redress from a governmental entity or officer or employee of a governmental entity, the court is obliged to evaluate the complaint and dismiss it without service of process if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) and 1915A; Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
Under this statute, a claim is frivolous only when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). A claim 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. Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999). It lacks an arguable factual basis only if the facts alleged are "clearly baseless," a category encompassing fanciful, fantastic, and delusional allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke, 490 U.S. at 327-28. Therefore, the Court must determine whether the plaintiff's claims are based on an indisputably meritless legal theory or clearly baseless factual allegations. Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); see Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992).
A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner's civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). District courts must construe in forma pauperis complaints liberally, but they aregiven broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
Dupard's allegations that he entered a plea of guilty, which he now contests, because of alleged ineffective assistance from his counsel, that his Fourth Amendment right against unreasonable search and seizure were violated by members of the Orleans Parish Police Department and the United States Marshals, that the District Attorneys instituted a Bill of Information as to the charge of failure to register as a sex offender without obtaining jurisdiction to do so, and that the judge accepted his plea of guilty to the offense without having jurisdiction to do so, invoke the Court's jurisdiction under 42 U.S.C. § 1983. Section 1983 provides a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." See 42 U.S.C. § 1983.
The United States Supreme Court, however, has limited the availability of Section 1983 actions for prisoners in certain instances. Of relevance here, the Supreme Court has stated that a Section 1983 plaintiff may not recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions which would render a conviction or sentence invalid, until such time as 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 under 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
The very basis of Dupard's complaint is a challenge to the constitutionality and validity ofhis underlying criminal conviction and his current incarceration for failing to register as a sex offender. His claim therefore calls into question the validity of his criminal conviction for which he is currently confined. The record does not provide any evidence that his conviction or sentence have 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 state or federal court as described in Heck1 The Heck bar would normally call for the dismissal of Dupard's claims until the Heck conditions are met.
However, it is well settled in the Fifth Circuit that before application of the Heck doctrine, the Court must address dismissal of improper and immune defendants....
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