The opinion of the court was delivered by: Reagan, District Judge:
On May 10, 2011, John M. Hardimon filed four pro se civil lawsuits in this District Court using a form designated "Pro Se Civil Rights Complaint (Non-Prisoner)" and listing two Plaintiffs: (1) himself and (2) his wife, Sarah McBride. One of the four cases is the above-captioned action. Along with the complaint in each case, Hardimon filed a motion seeking leave to proceed in forma pauperis (without prepaying fees or costs) and a motion for appointment of counsel.
Randomly assigned to the Honorable J. Phil Gilbert and transferred to the undersigned District Judge, this case comes now before the Court for threshold review of subject matter jurisdiction and resolution of Plaintiffs' request for leave to proceed in forma pauperis ("IFP").
"Ensuring the existence of subject-matter jurisdiction is the court's first duty in every lawsuit." Winters v. Fru-Con, Inc., 498 F.3d 734, 740 (7th Cir. 2007), quoting McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005), and citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). So, when a new lawsuit is filed in this Court, the complaint must be examined to make sure that federal subject matter jurisdiction lies over the lawsuit.
Plaintiffs invoke subject matter jurisdiction under the federal question statute, 28 U.S.C. § 1331, via alleged violations of rights secured by the United States Constitution. Although the complaint states that this suit is based on 42 U.S.C. § 1983 (which applies to state and local officers), Plaintiffs' claims (directed against a host of federal officials) appear to be better construed as Bivens claims. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), established that the victims of constitutional violations by federal agents can sue to recover damages against the officials in federal court. In other words, although "more limited in some respects, . a Bivens action is the federal analog to suits brought against state officials" under § 1983. Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006).
So, unlike several of Plaintiffs' other recently-filed lawsuits, the above-captioned case at least invokes a basis for federal subject matter jurisdiction, arguably surviving threshold jurisdictional review. The Court's inquiry does not end there, however. If a plaintiff wishes to proceed in forma pauperis, the district court must both
(1) ensure that the plaintiff is indigent and (2) screen the complaint, dismissing with prejudice any claims that are frivolous, malicious, or fail to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2); Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002), cert. denied, 538 U.S. 910 (2003).*fn1
More specifically, as to indigence, 28 U.S.C. § 1915(a)(1) authorizes
federal district court to allow a civil case to proceed without
prepayment of fees, if the movant submits an affidavit that includes a
statement of all assets he possesses which demonstrates that he is
unable to pay the fees or give security therefor. As to screening of
the complaint, 28 U.S.C. § 1915(e)(2) requires this Court to carefully
scrutinize the record and "dismiss the case," if the allegation of
poverty is untrue, the action is frivolous or malicious,*fn2
the action fails to state a claim upon which relief can be
granted, or the action seeks monetary relief against a defendant who
is immune from such relief.
Id. With these standards in mind, the undersigned Judge reviews the May 10, 2011 complaint herein and immediately encounters three significant obstacles.
First, to the extent that the complaint challenges Hardimon's conviction in the criminal case (Case No. 10-CR-30170-MJR), it runs afoul of the Heck doctrine. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court held that a civil plaintiff could not bring a § 1983 claim against prosecutors and investigators who allegedly engaged in an unreasonable and arbitrary investigation leading to his arrest. The Court concluded that the prisoner's claims in the § 1983 suit directly attacked the validity of his underlying conviction, and those claims could not be brought via civil complaint until the criminal conviction was overturned.
The Heck Court declared that to recover damages for an unconstitutional conviction (or for other harms caused by actions whose unlawfulness would render a conviction or sentence invalid), a § 1983 plaintiff first must prove that his conviction was reversed on direct appeal, expunged, or called into question by a federal court's issuance of a writ of habeas corpus. "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Heck, 512 U.S. at 486-87. See also Jogi v. Voges, 480 F.3d 822, 836 (7th Cir. 2007)(citing Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), for the proposition that Heck prevents using § 1983 or Bivens to circumvent the need to challenge the validity or duration of a conviction using the vehicle of habeas corpus).
As succinctly summarized by the Seventh Circuit five months ago: "The Supreme Court held in Heck that arguments attacking the validity of a conviction cannot be advanced under § 1983 unless the conviction or sentence previously has been invalidated." Polzin v. Gage, 636 F.3d 834, 836 (7th Cir. 2011).
So a plaintiff may not sue for damages based on violations of his civil rights arising from a criminal prosecution if a judgment in plaintiff's favor would necessarily imply the invalidity of the conviction or sentence. VanGilder v. Baker, 435 F.3d 689 (7th Cir. 2006). And the rule announced in Heck applies not just to § 1983 claims but to Bivens claims as well. See, e.g., Case v. Milewski, 327 F.3d 564, 569 (7th Cir. 2003); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997).
Thus, any suit that would undermine the conviction or sentence must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has been invalidated. Heck, 512 U.S. at 487. In the case sub judice, the complaint attempts to do precisely this -- undermine the validity of Hardimon's conviction based on alleged abuses of power by the investigators, F.B.I. agents, and prosecutors who served the search warrants, ...