Opinion
CIVIL ACTION NO. 06-0346 SECTION P.
August 10, 2006
REPORT AND RECOMMENDATION
Before the court is the pro se civil rights complaint ( 42 U.S.C. § 1983) of plaintiff, Timothy Ray Rainwater, filed in forma pauperis on February 24, 2006. Plaintiff is an inmate in the custody of the Louisiana Department of Corrections (LDOC), and he is presently incarcerated at the Avoyelles Parish Sheriff's Jail in Marksville, Louisiana. Plaintiff is presently serving concurrent sentences totaling 15 years, imposed by the Thirty-Sixth Judicial District Court following petitioner's July 2002 convictions for multiple counts of simple burglary and aggravated burglary. As defendants herein, plaintiff names the following: the 36th Judicial District Court; the 3rd Circuit Court of Appeal; the Louisiana Supreme Court; and, the Beauregard Parish Police Jury.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court.
STATEMENT OF THE CASE
Sometime prior to June 28, 2002, plaintiff was charged with two counts of simple burglary of an inhabited dwelling and two counts of aggravated burglary in the Thirty-Sixth Judicial District Court. On July 17, 2002, plaintiff accepted the plea agreement and entered guilty pleas to two counts of Simple Burglary of an Inhabited Dwelling and two counts of Aggravated Burglary. In accordance with the plea agreement, he was sentenced to concurrent sentences of 12 years each on the Simple Burglary convictions and concurrent sentences of 15 years each on the Aggravated Burglary convictions. These sentences were ordered to be served concurrently to one another but consecutive to any other sentences.
Plaintiff filed the present matter on February 24, 2006. As the basis for this suit, plaintiff claims that his guilty plea was coerced. More specifically, he states that he only accepted the plea agreement because the prosecution informed him that if he "refused the plea bargain he would be billed as a multiple offender (fourth offense) and sentenced to as much as life imprisonment without parole with a minimum mandatory sentence of 30 years." [Doc. 1-1, p. 5]. However, plaintiff contends that one or more of the predicate felony convictions used to determine his status as a third offender were rendered inapplicable since they occurred beyond the statutory "cleansing period" provided in R.S. 15:529.1. His claims in this regard appear to stem from the alleged use of plaintiff's juvenile records. In short, plaintiff claims that the information given to him by the prosecutor was incorrect and that "pleas based upon a threat to attempt to impose a sentence that the state could not lawfully impose should render said pleas invalid." [Doc. 1-1, p. 6]. In conjunction with his claims herein, plaintiff also states that there is a discrepancy between the wording of the court minutes of his plea, Boykin examination and sentencing, and the transcript of same.
La.R.S. 529.1(C) provides in part, "The current offense shall not be counted . . . if more than ten years have elapsed between the date of the commission of the current offense . . . and the expiration of the maximum sentence . . . of the previous conviction . . . or adjudication . . . of delinquency, or between the expiration of the maximum sentence . . . of each preceding conviction . . . alleged in the multiple offender bill and the date of the commission of the following offense . . . In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence . . . and the next succeeding offense . . ."
LAW AND ANALYSIS
At the onset, this court is called upon to determine whether to treat plaintiff's pleading as a petition for habeas corpus or, as plaintiff advances, a civil rights complaint under 42 U.S.C. § 1983. "Generally, § 1983 suits are the proper vehicle to attack unconstitutional conditions of confinement and prison procedures. See Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). A habeas petition, on the other hand, is the proper vehicle to seek release from custody. See Pugh v. Parish of St. Tammany, 875 F.2d 436, 439 (5th Cir. 1989)." Carson v. Johnson, 112 F.3d 818, 820. The Fifth Circuit has adopted a simple, bright-line rule for determining how to categorize such pro se pleadings: If "a favorable determination . . . would not automatically entitle [the prisoner] to accelerated release," Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam), cert. denied, 516 U.S. 1059, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996), the proper vehicle is a § 1983 suit.
Based upon a review of the pleadings herein, the court liberally construes plaintiff's pleadings as an attempt to assert both a habeas claim and a civil rights claim.
In addition to contesting the validity of his guilty plea and the claims of judicial and prosecutorial misconduct, plaintiff discussed, at length, his request that the Louisiana Supreme Court investigate his claims. To the extent that plaintiff is seeking this court's assistance in that regard, the court notes that it does not have jurisdiction over state courts or the judges who preside therein. Further, this court has previous ruled upon a "Motion to Investigate 36th Judicial District Court" filed by plaintiff in this matter [Doc. #5]. Said motion was denied. [Doc. # 8-1]. The court's reasoning in denying that motion applies equally to any request by plaintiff to have this court order the Louisiana Supreme Court to investigate his claims of misconduct.
Frivolity Review
When a prisoner seeks redress from a governmental entity or from an officer or employee of a governmental entity, the court is obliged to evaluate the complaint and dismiss it without service of process, if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991). A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiff's allegations unlikely." Jolly v. Klein, 923 F.Supp. 931, 942-43 (S.D.Tex. 1996). A civil rights plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is "not free to speculate that the plaintiff 'might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.The court is convinced that plaintiff has presented his arguments in the best possible light and need not be afforded the opportunity to amend. Accepting all of plaintiff's allegations as true, the court concludes, for the reasons stated hereinafter, that he has failed to state a claim for which relief may be granted and accordingly, recommends dismissal of the complaint.
Non-Juridical Entities
Plaintiff names the 36th Judicial District Court, the 3rd Circuit Court of Appeal, and the Louisiana Supreme Court as defendants herein. Fed.R.Civ.P. 17(b) provides that the Acapacity to sue or be sued shall be determined by the law of the state in which the district court is held.@ Thus, Louisiana law governs whether the defendant courts are entities which have the capacity to sue or be sued. Under Louisiana law, to possess such a capacity, an entity must qualify as a Ajuridical person.@ This term is defined by the Louisiana Civil Code as Aan entity to which the law attributes personality, such as a corporation or partnership.@ La. Civ. Code Ann. art. 24. The courts named by plaintiff are simply not entities capable of being sued. Plaintiff's suit against these non-juridical entities is frivolous.
The court notes that in Rainwater v. Stewart, 2:03-1604, plaintiff brought civil rights claims against Judge Stewart, District Attorney Burton, District Attorney Blankenship, and his former attorney, Mr. Jones. That matter was dismissed by this court based on, among other things, immunity of the Judge and the District Attorneys, and upon the fact that Mr. Jones was not a state actor. Thus, even if plaintiff herein had named the actual individuals that he claimed were guilty of misconduct, namely state trial judge Herman Stewart, District Attorney Burton, and Mr. Jones, plaintiff's former attorney, these claims would likewise fail.
The Beauregard Parish Police Jury
The Beauregard Parish Police Jury, as a local government body, may be held liable under § 1983 for a constitutional deprivation only when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to present official policy inflicts the injury. See, Monell v. Department of Social Services, 98 S.Ct. 2018, 2037-38 (1978). Plaintiff's complaint is completely devoid of any allegations against the Beauregard Parish Police Jury. Further, there is nothing to indicate that the Police Jury knew of or had adopted a custom or practice in any way relative to plaintiff's claims herein that could even be remotely be considered to have violated plaintiff's civil rights.Heck v. Humphrey Considerations
In Heck v. Humphrey, 114 S.Ct. 2364 (1994), the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue, until that 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." Heck, 512 U.S. at 486-87; See also Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995).
The maturity of a § 1983 claim therefore depends on whether a judgment in the plaintiff's favor would necessarily imply the invalidity of his conviction or imprisonment. Id. In this case, plaintiff is basically contending that he was maliciously prosecuted because the state improperly utilized prior felony convictions to adjudicate him an Habitual Offender under La.R.S. 15:529.1. Thus, in a § 1983 context, plaintiff seeks to prove that his adjudication as an Habitual Offender is invalid. His claims must be deemed not cognizable under the Heck doctrine as the Fifth Circuit has previously found that claims of malicious prosecution cannot accrue under Heck unless the underlying criminal prosecution has terminated in plaintiff's favor. See Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001), cert. den'd, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). Plaintiff's underlying adjudication has not been reversed or otherwise lawfully set aside and his claim will never mature so long as the state adjudication remains undisturbed. See Wells, 45 F.3d at 94-95.
Habeas Corpus Considerations
To the extent that plaintiff's complaint can be interpreted as a habeas petition, such should fail. Plaintiff has twice attacked this same conviction and sentence in prior petitions for writ of habeas corpus, one filed on April 27, 2004 ( Timothy Rainwater v. Superintendent Harvey Grimmer, 2:04-cv-989); and the other filed February 24, 2006 ( Timothy Rainwater v. Avoyelles Parish Jail, et al, 2:06-cv-347). The petition in 2:04-cv-989 was dismissed with prejudice on August 6, 2004, as petitioner's habeas claims were unexhausted as well as barred by the one-year limitation period codified at 28 U.S.C. § 2244(d). [04-989, Doc. #11, Report and Recommendation; Doc.# 12, Judgment]. The undersigned has recommended the dismissal of the petition in 2:06-cv-347 as time-barred via Report and Recommendation filed on July 12, 2006. [06-347, Doc. #5].
Thus, if plaintiff's present filing is construed as a habeas petition, it would be subject to the screening provisions set out in 28 U.S.C. § 2244(b)(3)(A), which provide that a second or successive § 2254 habeas petition must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)."
As previously stated, plaintiff has already had one habeas petition dismissed, and his second (and currently pending) habeas petition has been recommended for dismissal. Under any analysis, this matter would be considered "second or successive." See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.")
Accordingly,
IT IS RECOMMENDED that plaintiff's civil rights complaint be DISMISSED WITH PREJUDICE as frivolous and for failing to state a claim on which relief may be granted in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
IT IS FURTHER RECOMMENDED that to the extent that plaintiff's filing can be construed as a petition for writ of habeas corpus, that same be DISMISSED WITH PREJUDICE as second and successive.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.Proc. 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) days after being served with a copy thereof.
Failure to file written objections to the proposed factual finding and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglas v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).