IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10119
Summary Calendar
_____________________
STANLEY J. STEVENS,
Plaintiff-Appellant,
versus
HAY'S PHARMACY (OWNER) (IND.),
ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:95 CV 14 A)
_________________________________________________________________
(April 14, 1995)
Before JOHNSON, BARKSDALE, and PARKER, Circuit Judges.
JOHNSON, Circuit Judge:1
Stanley J. Stevens ("Stevens") appeals the district court's
dismissal of his section 1983 claim against Hay's Pharmacy; Douglas
Burns, pharmacist; the Forth Worth Police Department; Officer
Combs, a Fort Worth Police officer; the State of Texas; and the
Tarrant County Sheriff's Department ("Defendants"). Because we
agree with the district court that Stevens' claims are completely
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to this Rule, the Court has determined that this opinion
should not be published.
frivolous, we dismiss the appeal.
I. Facts and Procedural History
Stevens filed this section 1983 suit against the Defendants,
alleging that they conspired in a mutual scheme of entrapment by
accusing him of presenting a forged writing when they knew he had
not done so. On March 26, 1993, Doug Burns, a pharmacist at Hay's
Pharmacy received a phone call. The caller claimed to be a
representative of Dr. Charles Marable's office authorizing a
prescription of Vicodin for Stevens. Burns wrote-up the
prescription from the phone call, but then called Dr. Marable's
office to verify the prescription. No one from Dr. Marable's
office had authorized such a prescription. Burns then contacted
the Fort Worth Police Department. The Police Department instructed
Burns on a plan by which they would apprehend whoever came to pick-
up the unauthorized prescription.
Not long thereafter, Stevens arrived to pick-up the
prescription. Officer Combs of the Fort Worth Police Department
arrested Stevens, and Stevens was charged with presenting a forged
writing in order to obtain a controlled substance. Stevens' parole
was revoked.
Stevens denied calling the pharmacy. He claims that he was
under Dr. Marable's care for a back injury and that he was simply
picking-up a prescription that Dr. Marable's office was supposed to
have phoned into the pharmacy. Stevens contends: that he did not
present a forged writing because Burns wrote the prescription, that
the Fort Worth Police Department and the State of Texas knew this
2
and accused and convicted him anyway, and that the State of Texas
coerced him into a plea bargain by providing inadequate counsel.
Stevens filed suit under section 1983 seeking: to have the
charges dismissed, to have a new trial, to be released from
confinement, to be provided adequate counsel, and to be awarded
monetary damages from all defendants. The district court dismissed
Stevens' action as frivolous under 28 U.S.C. § 1915(d). Because we
believe that Stevens' appeal is completely lacking in merit, we
dismiss the appeal as well.
II. Discussion
A district court may dismiss an in forma pauperis complaint if
it is frivolous in that it lacks an arguable basis either in law or
in fact. Denton v. Hernandez, 112 S. Ct. 1728, 1733-34 (1992). A
complaint is legally frivolous if it is based on an "indisputably
meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325
(1989). A section 1915(d) dismissal is reviewed for an abuse of
discretion. Denton, 112 S. Ct. at 1734.
Section 1983 is not a vehicle through which to recover damages
for a conviction which has not been invalidated. The Supreme Court
has stated that to recover damages for an allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a section 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal or
otherwise called into question. Heck v. Humphrey, 114 S. Ct. 2364,
2372 (1994). Additionally, section 1983 cannot be used as a
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substitute vehicle to overturn convictions and sentences when state
remedies have not been exhausted. See id. at 2369-70.2
Stevens' original conviction remains wholly intact. In fact,
Stevens has admitted in the record that he has not challenged his
conviction in any other state court nor federal proceedings.
Stevens has not proven his conviction invalid nor exhausted his
state remedies in trying to so prove. Therefore, Stevens' section
1983 action is without arguable basis in law or fact and is
meritless.
III. Conclusion
Under Local Rule 42.2, this Court can dismiss an appeal as
meritless when it is so frivolous as to be lacking an arguable
basis in law or fact. Because this is just such a case of
frivolity, the appeal is dismissed and Mr. Stevens is warned that
similar frivolous appeals in the future will result in disciplinary
sanctions.
APPEAL DISMISSED.
2
When a section 1983 complaint is really a habeas corpus
petition in disguise, this Court will require that the habeas
corpus procedural requirements, such as state remedy exhaustion, be
met. See McGrew v. Texas Bd. of Pardons & Paroles, ____ F.3d ____,
(5th Cir. Mar. 13, 1994 No. 94-10674 ).
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