The opinion
□ Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT ven □□□
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD P. LOPEZ, a/k/a §
RICHARD PAUL LOPEZ, §
SPN #00044950, §
§
Plaintiff, §
§ Civil Action No. H-21-1973
Vv. §
§
HCSO, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Richard P. Lopez, a/k/a Richard Paul Lopez, a pretrial detainee in custody of the
Harris County Sheriffs Office “HCSO”), filed a pro se lawsuit against the HCSO under 42
U.S.C. § 1983. He impliedly seeks leave to proceed in forma pauperis. Plaintiff complains
that, in 1977, the 176th District Court of Harris County, Texas, “broke agreement on plea
bargain.” (Docket Entry No. 1, p. 8.) He seeks monetary compensation for “being illegally
detained” in 1977 after his plea bargain agreement was violated. Jd., p. 5.
Because plaintiff is a pretrial detainee seeking leave to proceed in forma pauperis, his
complaint is subject to screening under section 1915(e)(2). Section 1915(e)(2)(B) provides
for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds that it is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief.
Under section 1915(e)(2)(B)(i), the Court may dismiss an in forma pauperis complaint
as frivolous when it lacks an arguable basis in law or fact. Hutchins v. McDaniels, 512 F.3d
193, 195 (Sth Cir. 2007). A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory. Davis v. Scott, 157 F.3d 1003, 1005 (Sth Cir. 1998).
Plaintiffs claims are barred by the Supreme Court’s decision in Heck v. Humphrey,
512 U.S. 477 (1994). Under Heck, to recover damages based on allegations of unlawful
detention or imprisonment, a civil rights plaintiff must prove “that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determinations, or called into question by a federal court’s
issuance of a writ of habeas corpus [under] 28 U.S.C. § 2254.” Jd., 512 U.S. at 486-87.
Thus, plaintiff here cannot recover monetary damages for the alleged unlawful detention
unless he alleges and shows that the detention or underlying conviction has been invalidated
or otherwise declared unconstitutional. This, he has not done.
Because plaintiff's detention and/or incarceration arising from his 1977 plea bargain
agreement has not been reversed, held unconstitutional, or otherwise set aside, his claims for
monetary damages are barred by Heck.' Plaintiffs claims for monetary damages arising
from his 1977 detention and/or incarceration are DISMISSED WITH PREJUDICE to
'The Court expresses no opinion as to whether plaintiff’s claims stemming from the alleged
1977 plea bargain agreement violation are barred by limitations at this point.
being asserted again until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d
423, 424 (Sth Cir. 1996).
Plaintiffs lawsuit fails to state a viable claim for relief under section 1983, premised
on the Heck bar. This dismissal constitutes a strike for purposes of section 1915(g). Public
online court records show that plaintiffhas two prior dismissals that qualify as “strikes.” See
Lopez v. Thomas, C.A. No. H-04-0165 (S.D. Tex. Jan. 29, 2004) (dismissed for failure to
state a recognized civil rights claim); Lopez v. Esterra, C.A. No. H-20-3752 (S.D. Tex. Nov.
4, 2020) (dismissed as a strike). Consequently, plaintiff is now barred from proceeding in
forma pauperis in any federal civil lawsuit or appeal unless he establishes he is under
imminent danger of serious physical injury at the time of filing. 28 U.S.C. § 1915(g).
The Clerk is to provide a copy of this order to plaintiff and to the United States
District Court for the Southern District of Texas, Houston Division, Attention: Three-Strikes
List Manager, at the following email: Three_Strikes@txs.uscourts.gov.
Signed at Houston, Texas, on this the Ls day of June, 2021.
KEITH P. ce fe
UNITED STATES DISTRICT JUDGE