PAUL STICKNEY, Magistrate Judge
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights action brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Connally Unit of the Texas Department of Criminal Justice, Correctional Institutions Division in Kenedy, Texas. Defendants are the Criminal District Court of Ellis County, Texas, Judge Gene Knize, State Trial Attorney Don Maxfield, Court Appointed Counsel Mark Griffith, Chief Justice Rex D. Davis, and Judge Sharon Keller. The court has not issued process in this case. However, on June 10, 2004, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on June 22, 2004.
Statement of Case: The complaint alleges Defendants conspired against Plaintiff by allowing the state to proceed to trial on an invalid indictment, which resulted in his conviction for aggravated assault on a public servant, and in his punishment being imposed at sixty years imprisonment in Ellis County Criminal District Court. See Warren v. Dretke, No. 04-496-D (N.D. Tex. Jul. 15, 2004) (Findings, Conclusions and Recommendation of Magistrate Judge Kaplan). Plaintiff requests monetary compensation for his unlawful imprisonment. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A provides in pertinent part that:
In addition to damages, Plaintiff requests release from confinement. Such a request is cognizable only in a habeas corpus action pursuant to 28 U.S.C. § 2241, et. seq. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (where a petitioner attacks the duration of his confinement, "`the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983.'"); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (a petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same).
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(a) and (b) (emphasis added).
See also 28 U.S.C. § 1915(e)(2)(B).
Section 1915A(b) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff requests monetary damages against his trial and appellate judges, the chief justice of the Texas Court of Criminal Appeals, and the state trial attorney. These individuals, however, are absolutely immune from any claim for monetary damages. It is self-evident that any ruling issued in the course of the trial proceedings occurred in Judge Neill's capacity and function as a judge, which in and of itself renders him immune from a suit for monetary damages.Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also Brandley v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995). The same is applicable to any rulings issued by Judge Keller and Justice Davis in connection with Plaintiff's direct appeal and petition for discretionary review. Similarly any actions by State Trial Attorney Maxfield were taken in his role as prosecutor. It is well established that a district attorney is absolutely immune in a civil rights suit for any action taken pursuant to his role as prosecutor in preparing for the initiation of judicial proceedings and in presenting the State's case. See Kalina v. Fletcher, 522 U.S. 118, 129 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir. 1997).
Plaintiff's claim against Defense Counsel Griffith fares no better. It is well established that neither appointed nor retained counsel acts under color of state law in representing a defendant at trial or on direct appeal. See Polk County v. Dodson, 454 U.S. 312, 324, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law).
Even assuming Plaintiff could satisfy the color-of-law requirement by virtue of his conspiracy claim, his claims are still subject to dismissal at the screening stage. Plaintiff's request for monetary damages is connected to the legality of his conviction for aggravated assault on a public servant for which he is presently serving a sixty-year sentence. A finding in favor of Plaintiff on any of his claims would imply the invalidity of his conviction which is the basis for his present confinement.
Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the court must dismiss a civil action based on the legality of a prior criminal conviction or sentence unless a federal court has determined that the conviction or sentence is in fact invalid or otherwise legally infirm. See Heck, 512 U.S. at 486-87. The record indicates that such a determination has never been made. On the contrary, it is clear that Plaintiff's conviction was affirmed on direct appeal, see Warren v. State, 98 S.W.3d 739 (Tex.App.-Waco 2003, pet. ref'd), that his application for state post-conviction relief was denied without written order by the Texas Court of Criminal Appeals, see Ex parte Warren, No. 52,260-04 (Tex.Crim.App. April 16, 2003), and that his federal habeas corpus petition was denied with prejudice, see Warren v. Dretke, No. 3:04cv496-D (N.D. Tex. Aug. 16, 2004) (adopting findings and recommendation of Magistrate Judge Kaplan). Plaintiff is therefore precluded from maintaining a civil cause of action unless and until he receives a ruling declaring his aggravated assault conviction invalid. Heck, 512 U.S. at 488-89; accord Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) ("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. . . ."). The complaint should be dismissed with prejudice to it being reasserted when the Heck conditions are met. See Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996). RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's complaint with prejudice as frivolous to it being reasserted when the conditions set out in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), are met. See 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff.