Vicencio v. United States
| Decision Date | 06 June 2022 |
| Docket Number | Civil Action 4:21-CV-00571-SDJ-CAN |
| Parties | JUAN VICENCIO, #28334-177, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff Juan Vicencio's Amended Complaint [Dkt. 9]. After considering the Amended Complaint and all other relevant filings, the Court sua sponte recommends that Plaintiff's suit be DISMISSED WITH PREJUDICE, as set forth herein.
Pro se Plaintiff Juan Vicencio (“Plaintiff”), a federal inmate presently confined at Oakdale FCI, filed the instant suit on July 21, 2021, against the United States of America (“Government”), for “deprivation of his Vth[sic], VIIIth[sic], and XIVth[sic] Amendment Right's while acting under color of law[] Persuant[sic] ¶ 42 U.S.C.S. 1983 [and] seek[ing] a cause of Action for civil indifference[sic]” [Dkt. 1 at 1]. This case was referred to the undersigned for further proceedings on that same day [Dkt. 2]. Plaintiff filed a Motion to Proceed In Forma Pauperis [Dkt. 3]. On August 18, 2021, the Court granted Plaintiff's Motion to Proceed In Forma Pauperis [Dkt. 6]; and, directed Plaintiff to file an amended complaint [Dkts. 5; 8].
Plaintiff filed his Amended Complaint-the live pleading-on October 18 2021 [Dkt. 9]. Plaintiff's Amended Complaint alleges the Government's “unconstitutionable[sic] and unethical conduct deprived Plaintiff of his liberty” [Dkt. 9 at 4]. In their totality, Plaintiff's pleadings allege United States Attorney of the Eastern District of Texas submitted a “defective grand jury indictment” and then conspired with his defense counsel to initiate a “malicious prosecution” of Plaintiff [Dkt. 1 at 3]. Plaintiff continues that all other persons charged by defective indictments had their cases dismissed, except for Plaintiff who is a Latin American citizen [Dkt. 1 at 13]. Plaintiff states the relief sought as follows: “The Court should invalidate Plaintiff's [federal] conviction, and issue a certificate of innocence” [Dkt. 9 at 4]. Although Plaintiff asserts his claims under § 1983, because the named defendant is the federal government, the Court construes the claims as brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 297 (1971).[1]
Plaintiff is currently a federal prisoner, as such, his complaint is subject to preliminary screening and possible sua sponte dismissal under 28 U.S.C. § 1915A. Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Section 1915A “institutes certain screening procedures once a complaint is received by a district court” and is “quite similar to the roles played by Federal Rules of Civil Procedure 11 and 12(b)(6).” Id. at 580 n.2; see also Garcia v. Jones, 910 F.3d 188, 190 (5th Cir. 2018) (), cert. denied, 139 S.Ct. 626 (2018). Pursuant to 28 U.S.C. § 1915A(b)(1), federal courts are mandated to preemptively screen prisoner complaints against government officials or entities to identify cognizable claims and dismiss the complaint or any portion of the complaint that is frivolous, malicious, or fails to state a claim upon which relief may be granted. Montgomery v. Barr, No. 4:20-CV-01281-P, 2020 WL 7353711, at *7 (N.D. Tex. Dec. 15, 2020) (); Hines v. Graham, 320 F.Supp.2d 511, 526 (N.D. Tex. 2004).
Because Plaintiff is proceeding in forma pauperis, his Complaint is also subject to screening under § 1915(e). See 28 U.S.C. § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See Jackson v. Johnson, No. CV 18-0512, 2018 WL 3372049, at *1 (W.D. La. June 25, 2018), report and recommendation adopted, No. 3:18-CV-00512, 2018 WL 3370571 (W.D. La. July 10, 2018); Martin, 156 F.3d at 579-80; 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). A claim is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Nottingham v. Richardson, 499 Fed.Appx. 368, 372 (5th Cir. 2012) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Henrise v. Horvath, 94 F.Supp.2d 768, 769 (N.D. Tex. 2000); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Moreover, although a Pro se plaintiff's pleadings must be read more liberally than those filed by an attorney, the complaint must nonetheless allege sufficient facts to demonstrate to the court that the plaintiff has at least a colorable claim. See Bustos v. Martini Club, Inc., 599 F.3d 458, 465-66 (5th Cir. 2010).
As discussed infra, the Court finds that Plaintiff's Bivens-type[2] civil rights lawsuit should be dismissed because Plaintiff's claims are barred by Heck v. Humphrey.
Plaintiff was indicted on June 13, 2013, in the Eastern District of Texas, by Superseding Indictment, on two counts. USA v Vicencio, 4:13-cr-00092-MAC-CAN, ECF No. 62 (E.D. Tex June 13, 2013). Count One charges a violation of 21 U.S.C. 846, Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine; Count Thirteen charges a violation of 21 U.S.C. 841(a)(1), Possession With Intent to Distribute Methamphetamine. Subsequent to indictment, an Information was docketed in Plaintiff's cause, charging him in one count with a violation of 21 U.S.C. 841(a)(1) Possession with Intent to Distribute Methamphetamine. Id. at ECF No. 313. On June 9, 2014, Plaintiff executed a waiver of indictment and proceeded to enter a plea of guilty to Count 1 of the Information. Id. at ECF 327-335. Plaintiff was sentenced on December 18, 2014, by United States District Judge Marcia A. Crone to 135 months imprisonment Id. at ECF 467. At the time of sentencing all remaining counts (those set forth in the Superseding Indictment) were dismissed on the motion of the United States.
As relief in this cause, Plaintiff now asks the Court to invalidate his federal conviction and issue a certificate of innocence [Dkt. 9 at 4]. This Court cannot do so. In Heck v. Humphrey, 512 U.S. 477 (1994), “the Supreme Court unequivocally held that no cause of action exists under § 1983 for state prisoners who bring civil rights actions for allegedly unconstitutional convictions or imprisonment, or otherwise collaterally attacking the constitutionality of the convictions that form the basis for their incarceration, unless the state prisoner can show that the state criminal conviction he is collaterally attacking has been invalidated by a state appellate court, a state or federal habeas court, or some other state authority with jurisdiction to do so.” Henry v. Kerr Cnty., Tex., No. SA:16-CV-284-DAE-PMA, 2016 WL 2344231, at *5 (W.D. Tex. May 2, 2016) (emphasis in original) (citing Heck, 512 U.S. at 477). The Heck bar applies no matter the relief sought (damages or equitable relief), if success in the action would necessarily demonstrate the invalidity of the conviction. Moore v. Sawyer, No.1:10CV310, 2010 WL 6004375, at *2 (E.D. Tex. July 2010) (); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Important here, while Heck involved a civil rights lawsuit filed by a state prisoner pursuant to 42 U.S.C. § 1983, the principles established in Heck have also been found to apply to lawsuits filed by federal prisoners pursuant to Bivens which imply that a federal criminal conviction is invalid. See Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994) (“for purposes of a civil rights action implicating the validity of a conviction, there should be no distinction between state and federal prisoners and that the analysis of a federal prisoner's Bivens-type action which implicated his conviction ‘should parallel the analysis used to evaluate state prisoners' 1983 claims'”); see also Pond v. Carpenter, No. 7:18-cv-158-O, 2022 WL 1179838, at *2 (N.D. Tex. Mar. 31, 2022) (); Pearson v. Holder, No. 3:09-CV-00682-O, 2011 WL 13185719, at *5 (N.D. Tex. Apr. 2011) ( ).
Plaintiff is plainly collaterally challenging the fact of his federal criminal conviction. He claims in this civil action that the indictment issued against Plaintiff was defective and that his prosecution was malicious and...
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