Opinion
CIVIL ACTION 07-0209-WS-M.
August 5, 2008
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a Complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I. Complaint. (Doc. 1)
Plaintiff names as Defendants B.R. Keahey, District Attorney of Clarke County, Alabama, and Wylynn Gilmore, Plaintiff's criminal defense counsel. The allegations against Defendants stem from the criminal proceedings that resulted in Plaintiff's conviction for sexual abuse on January 29, 1997, for which he is presently serving a twenty-year imprisonment sentence. In this action Plaintiff requests the Court to "vacate illegal imprisonment and set me free [and] declaratory judgement and injuncti[ve] relief." (Doc. 1 at 6).
Plaintiff claims, in his brief Complaint with its deficit of factual allegations, that he has been illegally imprisoned from January 29, 1997, when Defendant Gilmore failed to protect him in the Circuit Court of Clarke County in the presence of Defendant Keahey. ( Id. at 3). Plaintiff maintains that Defendant Gilmore and Defendant Keahy "forced and coerced [him] in taking this illegal imprisonment of 20 years." ( Id.). Defendant Gilmore allegedly rendered ineffective assistance counsel when she "threaten force coerced [Plaintiff] to take and sign a paper [he] did not know what it was cause [he] cant read or write and she did not advise [him as to] what it was [he] was signing." ( Id. at 4). Defendant Keahey had "[n]o statement of victim I touch her of raped her no DNA forenic evidence lab reports: no motion by DA Robert Keahey et al. For discovery of rape etc. under Ala.R.Crim.P. 16 statutes." ( Id. at 6).
The Court notes that Plaintiff was incarcerated under the same AIS number, #145167, prior to his present incarceration. During his prior incarceration, he filed Darrington v. Sheffield, CA 94-0329-MHT-JLC (M.D. Ala. Apr. 13, 1994), which was transferred from the Middle District of Alabama to this Court where it became CA 94-0312-RV-C (S.D. Ala. June 2, 1995). This action was dismissed for failure to prosecute.
During his present incarceration, he has filed two other actions in addition to this present action, Darrington v. Riley, et al., CA 04-0037-BH-B (S.D. Ala. Aug. 23, 2004) (action was dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim), and Darrington v. Anderson, et al., CA 04-0897-WHA-SRW (M.D. Ala. June 19, 2006) (summary judgment granted for defendants). An examination of some of the handwriting in these two recent actions indicates that it is similar to Plaintiff's signature. It is also apparent that in these action that he had assistance, possibly from other inmates.
This examination of Plaintiff's case filings also revealed that Plaintiff has never filed a habeas petition under 28 U.S.C. § 2254. And Westlaw reflects no published opinions in Plaintiff's state court cases.
In the attachments to the Complaint, Plaintiff identifies with more specificity each constitutional amendment that he claims is violated. ( Id. at 11). The remainder of the allegations are similar to the allegations contained in the complaint form except that he uses the term "malicious prosecution," states that he did not give a statement when he was arrested, and alleges that Defendants Gilmore and Keahey "conspired together to deprived the Plaintiff outta his life, liberty, for 20 years in ADOC illegal." ( Id.). An affidavit is attached as well, in which Plaintiff swears before a notary public that "[h]e never touch nobody in a sexual way" and "never raped nobody ever in [his] life." ( Id. at 8).
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Because Plaintiff is proceeding in forma pauperis and was in prison when he filed this action, the Court is reviewing Plaintiff's amended complaint (Doc. 36) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit or the claim seeks to enforce a right that clearly does not exist. Id. at 327, 109 S.Ct. at 1833. Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id.
The predecessor to this section is 28 U.S.C. § 1915(d). Even though Congress made many substantive changes to § 1915(d) when it enacted 28 U.S.C. § 1915(b)(2)(B), the frivolity and the failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989), was unaltered. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001); Brown v. Bargery, 207 F.3d 863, 866 n. 4 (6th Cir. 2000). However, dismissal under § 1915(e)(2)(B) is now mandatory. Bilal, 251 F.3d at 1348-49.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984) (citation omitted); see Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (noting that § 1915(e)(2)(B)(ii)'s language tracks the language of Fed.R.Civ.P. 12(b)(6)). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1966 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Id. at 1965. That is, the allegations must be a "`plain statement' possess[ing] enough heft to `sho[w] that the pleader is entitled to relief.'" Id. at 1966 (second brackets in original). "[L]abels and conclusions and a formulaic recitation of a cause of action's elements" are insufficient for grounds for entitlement to relief. Id. at 1965. However, when a successful affirmative defense, such as a statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, ___, 127 S.Ct. 910, 920-21 (2007).
III. Discussion.
A. Plaintiff's Request for Relief.
Plaintiff's request for relief governs the disposition of this action. Plaintiff wants his conviction vacated so he can be free, and he also requests declaratory and injunctive relief. This general assertion of declaratory and injunctive relief is based on Plaintiff's challenges to his conviction. Inasmuch as there is no other basis for the declaratory and injunctive relief claims in this action, the Court is treating Plaintiff's requests together as requests for declaratory and injunctive relief to have his conviction vacated and to be released. The Court cannot discern any greater declaratory or injunctive relief based on Plaintiff's claims or any other relief that would be satisfactory to Plaintiff and that can be awarded by the Court.
In a § 1983 action, "declaratory or injunctive relief claims which are in the nature of habeas corpus claims-i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release-are simply not cognizable under § 1983." Abella v. Rubino. 63 F.3d 1063, 1066 (11th Cir. 1995). "`[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release.'" Id. (quoting Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 2369 (1994)). Because Plaintiff cannot obtain the relief that he seeks in a § 1983 action, his action is frivolous as a matter of law. As a consequence, his action is due to be dismissed for this reason alone.
B. Conspiracy Allegation.
However, assuming arguendo that Plaintiff had requested damages in addition to his declaratory and injunctive relief requests, his damages claims would also be without merit. Plaintiff asserts that Defendant Gilmore and Defendant Keahey "conspired" to have Plaintiff plead guilty. ( Id. at 11). The word "conspired" is used only once in the Complaint, and no particulars are offered with it to show how a conspiracy was planned or executed. Reviewing the Complaint to determine if a conspiracy existed, the Court finds that the only allegation that involves both Defendants is "[t]he plaintiff was made and forced, threatened, coerced to take 20 years in ADOC by Lawyer Gilmore, and D.S. Robert Keahey 1/29/97." ( Id. at 12). This allegation was reiterated several times in the Complaint without further development and without further mentioning of a conspiracy. ( See Id. at 3, 8, 12). This conspiracy allegation, without more information, does not show that something beyond negotiations for a plea agreement took place. Furthermore, no other facts can be gleaned from the Complaint that tend to support a conspiracy.
In order to state a § 1983 conspiracy claim, "a plaintiff `must show that the parties `reached an understanding' to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy.'" Bailey v. Board of County Comm'rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir.) (quotation omitted), cert. denied, 506 U.S. 832 (1992). It is not necessary to produce a "smoking gun" to show an "understanding" or "willful participation," but there must be some evidence of an agreement between defendants to show a conspiracy. Rowe v. Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). Id. "[T]he linchpin for conspiracy is agreement, which presupposes communication." Bailey, 956 F.2d at 1122. While on the other hand, an assertion of a conspiracy that is vague and conclusory fails to state a claim upon which relief can be granted. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984).
Plaintiff is required to show "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" See Williams v. St. Vincent Hosp., 258 Fed.Appx. 293, 294 (11th Cir. Dec. 10, 2007) (unpublished). However, no allegations show that an understanding was reached between Defendants or that one detailed prevailing plan existed. After review of the conspiracy allegation, and observing a lack of factual support, the assertion of a conspiracy appears only to be vague and conclusory and does not rise above the speculative level. See Williams v. St. Vincent Hosp., 258 Fed.Appx. 293, 294 (11th Cir. Dec. 10, 2007) (unpublished) (affirming the dismissal by the district court of "the conclusory and general allegations of a conspiracy" because they did not satisfy the elements of a § 1983 cause of action and they did not "raise a right to relief above the speculative level.") (quoting Twombly, 127 S.Ct. at 1964-65); see also Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (ruling that stringing together the discreet steps in the commitment process without alleging contacts that would prove an understanding was reached did not state a conspiracy claim). Accordingly, the Court would find that Plaintiff has failed to state a conspiracy claim upon which relief can be granted. Therefore, the conspiracy claim is due to be dismissed.
C. Claims Against District Attorney Keahey.
The analysis of the other damages claims would cause the Court to examine the specific allegations directed to each Defendant. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (in a § 1983 action a plaintiff must establish a causal connection between a defendant's actions, orders, customs, or policies and a deprivation of the plaintiff's constitutional rights in order to state a claim upon which relief may be granted).
Plaintiff's claims against Defendant Keahey are very brief. Plaintiff claims that Defendant Keahey "forced and coerced [him] in taking this illegal imprisonment of 20 years" and Defendant Keahey offered "[n]o statement of victim I touch her of raped her no DNA forenic evidence lab reports: no motion by DA Robert Keahey et al. For discovery of rape etc. under Ala.R.Crim.P. 16 statutes." (Doc. 1 at 2-3).
Plaintiff's statements of "forced" and "coerced" are vague and conclusory, and his statements of illegal imprisonment and malicious prosecution are legal conclusions that a court would draw from the facts. Fullman, 739 F.2d at 556-57 (finding that vague and conclusory claims are subject to dismissal); cf. GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1368 (11th Cir. 1998) (finding even though the courts give leniency to pro se litigants, the courts will not act as a plaintiff's de facto attorney or rewrite a deficient complaint). The use of these terms along with Plaintiff's other disordered allegations would result in the failure to state a claim against Defendant Keahey. Accordingly, these claims against Defendant Keahey would be dismissed.
However, if it was determined that Plaintiff had stated a claim against Defendant Keahey, an alternate basis for the dismissal of the damages claims against Defendant Keahey is prosecutorial immunity. A prosecutor is entitled to absolute prosecutorial immunity from damages in a § 1983 action for acts or omissions associated with the judicial process, in particular, those taken in initiating a prosecution and in presenting the government's case. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995 (1976); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985); Fullman, 739 F.2d at 558-59.
The Supreme Court looks to common law and the functions being performed in order to determine if the prosecutor is to be accorded absolute immunity for his actions. Malley v. Briggs, 475 U.S. 335, 342, 106 S.Ct. 1092, 1096-97 (1986). The act of negotiating a plea bargain and of determining what information or evidence needs to be obtained through discovery or to be submitted into evidence are generally associated with judicial proceedings, i.e., they are steps taken in preparing the case for trial or presenting the case at trial. A prosecutor is therefore protected with absolute immunity in order not to "impair the performance of a central actor in the judicial process." Id. at 343, 106 S.Ct. at 1097. Accordingly, for the acts taken in preparing the State's case and in presenting it, Defendant Keahey would be entitled to absolute immunity from damages, and the damages claims would be dismissed as frivolous. Imbler, 424 U.S. at 430-31, 96 S.Ct. at 995.
D. Claims Against Criminal Defense Counsel Wylynn Gilmore.
An alternate basis for the dismissal of Defendant Gilmore is lack of state action. Plaintiff alleges that Defendant Gilmore rendered ineffective assistance of counsel when she forced, threatened, and coerced Plaintiff to sign a paper of which he did not know the meaning and which she did not explain to Plaintiff who cannot read or write. (Doc. 1 at 4 This caused allegedly Plaintiff to receive a twenty-year sentence of imprisonment. Plaintiff does not allege, however, that Defendant Gilmore acted under color of state law however.
A necessary element in a § 1983 action is that the defendant have acted under color of state law when the alleged constitutional deprivation was committed. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). In a § 1983 action, court-appointed, criminal defense counsel does not act under color of state law in the absence of a conspiracy. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453 (1981). Only when a conspiracy exists between criminal defense counsel and a state actor may criminal defense counsel be found to be acting under color of state law. Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 2824 (1984).
In Polk County, supra, the Supreme Court reasoned that "[e]xcept for the source of payment, [the] relationship [between criminal defendant and defense counsel is] identical to that existing between any other lawyer and client." Polk County, 454 U.S. at 318, 102 S.Ct. at 449. The Polk County Court concluded that "[t]his [relationship] is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed." Id. at 319, 102 S.Ct. at 450 (footnote omitted). The Court determined that court-appointed, criminal defense counsel carried out the traditional functions of a lawyer representing a criminal defendant and therefore did not act under color of state law. Id. at 325, 102 S.Ct. at 453. Thus, the Court ruled that the § 1983 complaint must be dismissed against criminal defense counsel for lack of state action. Id.
Based on the Complaint's allegations and on the finding that the conspiracy allegation fails to state a claim upon which relief can be granted, Defendant Gilmore would be deemed not to have been acting under color of state law. Accordingly, Plaintiff has failed to state a claim upon which relief may granted against Defendant Gilmore. And, after considering the context of the claim, and that Plaintiff's conviction has not been invalidated as indicated by his request for relief and his responses to the complaint form's questions (Doc. 1 at 5-6), the Court would dismiss such claim as frivolous. Because the claims are not ripe due to his conviction not having been invalidated, the claims would be dismissed with prejudice. Abella, 63 F.3d at 1065 (noting that the plaintiff "could bring his . . . damages claims in the future should he meet the requirements of Heck").
Due to the manner in which Plaintiff pleaded his claims, the Court concludes that it is not necessary to discuss the decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). See Abella, 63 F.3d at 1065 n. 3 (observing that defendants who are entitled to absolute immunity from damages should have that issue resolved before deciding the ripeness issue under Heck in order for those defendants to avoid a future action). Because Plaintiff's claims are of the nature that a favorable ruling on them would have the effect of invalidating his conviction, i.e., his claims for ineffective assistance of counsel, sufficiency of the evidence, and a guilty plea not voluntarily, knowingly, and intelligently entered, the Court will briefly inform Plaintiff of the holding in Heck.
In Heck, a prisoner filed a § 1983 damages action against the prosecutors and investigator in his criminal case for their actions that resulted in his conviction. The Supreme Court analogized the plaintiff's claim to a common-law cause of action for malicious prosecution, which had as a required element that the accused prove the termination of the prior criminal proceeding for the accused. Id. at 484, 114 S.Ct. at 2371 (emphasis added). The Heck Court opined:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, (footnote omitted), a § 1983 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. (Emphasis added).Id. at 486-87, 114 S.Ct. at 2372-73.
Thus, if the damages claims would have the effect of invalidating Plaintiff's conviction if the Court were to rule favorably on them, then Plaintiff would have to demonstrate that his conviction has been invalidated in order to avoid dismissal of his claims. On the other hand, if Plaintiff's § 1983 damages claims would not have the effect of invalidating his conviction if the Court were to rule favorably on them, then his claims may proceed in this action unless another bar exists to the claims proceeding. Id. at 487 n. 7, 114 S.Ct. at 2373 n. 7.
The Court has examined the electronic dockets of the three federal districts courts in Alabama and did not find an action for habeas relief under 28 U.S.C. § 2254 filed by Plaintiff. As discussed earlier, the federal court can only release an inmate in a habeas action or set aside his conviction or sentence.
III. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.