Opinion
CA 99-0809-AH-C.
October 17, 2000.
REPORT AND RECOMMENDATION
This cause is before the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(d). Plaintiff John H. Williams originally filed this action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Alabama on August 2, 1999. (See Doc. 1) The action was transferred to this Court by order dated August 31, 1999. (Doc. 5; see also Doc. 3) Thereafter, plaintiff was ordered by this Court to file an amended complaint on this Court's § 1983 complaint form in large measure because the claims set forth in his original complaint were confusing and could not be readily understood. (See Doc. 7) Plaintiff was informed that his new complaint would supercede the complaint he filed in the Middle District of Alabama. (Id.) Plaintiff filed an amended complaint on October 27, 1999. (Doc. 8) Following a complete and thorough review of the amended complaint, the undersigned recommends that the complaint be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) (ii).
"A full-time magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a district judge a report containing proposed findings of fact and recommendations for the disposition of complaints filed by prisoners challenging the conditions of their confinement." SD ALA LR 72.1(d).
FINDINGS OF FACT
1. When plaintiff originally filed his civil rights complaint in the Middle District of Alabama on August 2, 1999, the style of the complaint listed Baldwin County as the sole defendant (Doc. 1, at 1) while the body of the complaint listed the Circuit Court of Baldwin County as the sole defendant (id., at 2). Williams alleged in this original complaint that his Fifth Amendment rights were violated in that he has twice been put in jeopardy of life and limb; that his Sixth Amendment right to a speedy trial has been violated; and that his Fourteenth Amendment rights to due process and equal protection of the law were violated.
In support of this constitutional violation, plaintiff stated: "Around or about the 27th day of January, 1998 plaintiff['s] name was placed under a writ of arrest by verbal request of another citizen, in which plaintiff was already incarcerated by Alabama Department of Corrections, in mere (sic) twice put in jeopardy." (Doc. 1, at 3)
In support of this constitutional violation, plaintiff stated: "On the 13th day of October, 1998 a motion for speedy trial was filed[;] also[,] another motion for a speedy trial was filed on the 22nd day of November, 1998. In which there was not a response."
In support of this constitutional violation, plaintiff stated: "On the 3rd day of March, 1998[,] [p]laintiff made parole by the Alabama Board of Pardon[s] and Parole due to the enforcement of law being charged by the said above circuit court."
2. By order dated October 8, 1999, the undersigned ordered plaintiff to file an amended complaint on this Court's § 1983 form complaint. (Doc. 7) "The Court observes that the present complaint does not present plaintiff's claims clearly. That is, the Court does not understand plaintiff's claims. Plaintiff, therefore, is ORDERED in his amended complaint to clearly present his claims and to provide factual support for his claims so they may [be] able to be understood." (Id. at n. 1) Plaintiff was specifically informed that the new complaint would supercede the prior complaint and that he would be unable to rely upon his prior complaint. (Id. at 1)
3. Plaintiff filed his amended complaint on October 27, 1999. (Doc. 8) While the style of the complaint lists the defendants as Baldwin County and Ronald Weaver (id. at 1), section III of the complaint lists Ronald Weaver as the sole defendant (id. at 5 6). This Court's form civil rights complaint for prisoners contains numerous instructions which inmates are instructed to read carefully (Doc. 8, at 1), one of which explicitly provides that "[t]he persons who are listed as defendants in section III of the complaint are deemed by the Court to be the only defendants to this action." (Id. at 2, ¶ D)
4. The claims section of the form complaint reads in its entirety as follows:
On the 11th day of November[,] 1997[,] Inmate John H. Williams[,] Jr.[,] . . . while incarcerated at Loxley Community Work Center[,] . . . was placed [in] . . . the segregation unit by one SGT. Gary Hetzel around or about 7:30 am, awaiting disciplinary action for a rule [violation,] . . . # 50[,] [b]eing in an unauthorized area.
On the 12th day of November[,] 1997 round or about 7:10 pm one COI Mary Cooks served Inmate Williams with DOC form 225B Prison Disciplinary for the above said charge of Rule # 50. On the 13th day of November[,] 1997[,] Inmate Williams [was] also charged by one SGT. James Riley for a said violation of Rule . . . # 90[,] testing positive for marijuana[, and] round or about 4:00 pm one COI Mary Cooks served Inmate Williams with DOC form 225B Prison Disciplinary. On the 18th day of November[,] 1997 round or about 2:55 pm Inmate John H. Williams [was] served 2 DOC forms 225B disciplinary copies with the Hearing Officer's decision of guilty without the presence of Inmate John H. Williams[,] Jr. On the 19th day of November one COI Gerry Troutman gave inmate John Williams the final "2" Disciplinaries sign[ed] and approved by one Warden Ronald Weaver also done the 19th day of November 1997.
On or about the 20th day of November[,] Inmate John H. Williams[,] along with Inmates Abraham Motley [and] Carlos Williams[,] [was] transferred to Easterling Correctional Facility for punishment of the above said charges.
On DOC 225B Form the recommendation of [the] hearing officer was to be "Transfer to a Level IV Facility. Refer to Classification and Psychologist for Evaluation and for Custody Change." Also[,] on the second DOC 225B form [the] recommendation of [the] hearing officer was "Recommended for Subject or Attend Relapse whichever is needed. Loss of all privileges for 90 days. Probation for the said time of 90 days." [I] was placed within a Level IV facility by the sanction of prison disciplinaries where [I'm] still serving the sentence of the above said charges.
On March 2d 1998[,] plaintiff was called to Easterling Correctional Facility Health Care Unit to take his D/A testing. Inmate John H. Williams[,] Jr., asked the correction[s] officer what was the test for [and] COI Reeves responded you have made parole for March 3rd 1998[,] after which plaintiff took the test.
On the 3rd day of March Imnate Williams was told he had a detainer warrant for the said Baldwin County therefore Inmate John H. Williams parole was taken. Plaintiff submit that a "Writ of Arrest — Grand Jury Indictment was lodged against him on the said 27th day of January, 1998 by one Warden Ronald Weaver from said Circuit Court of Baldwin County, Alabama, to the charge: Criminal Surveillance. Whereas such warrant [was] served to plaintiff on the 12th day of May, 1998. Therefore, plaintiff was transferred by Baldwin County from Easterling Correctional Facility to [the] Baldwin [County] Jail round or about 4th day of June 1998 . . . [and] plaintiff [was] never taken to the scheduled hearing on the said charge. Plaintiff was also arraigned for the 31st day of July[,] 1998 at the said time of 9:00 . . . which never occurred. Plaintiff filed a motion for a speedy trial to the said Circuit Court of Baldwin County, Alabama on the 13th day of October[,] 1998, [which] was filed by Jackie N. Calhoun[,] Circuit Court Clerk[,] on the 16th day of October, 1998, which was [then] returned to plaintiff by the Circuit Court of Baldwin County on the 20th day of October[,] 1998 without any other response. Afterward, plaintiff filed another motion for a speedy trial on the 22nd day of November[,] 1998. Also there wasn't a response to this litigation either. There was no assistance in substantiating the validity of the said information in which plaintiff requested . . . legal assistance in the final disposition of the said presumed untried indictment[/] information, and complaint of the said charge.
Supporting Facts.
(a). Plaintiff was charged for the same offense by the State of Alabama prison official, one [W]arden Ronald Weaver, therefore[,] being arrested without a proper reading of rights and charged for the same offense is within violation of plaintiff's constitutional rights. Therefore[,] violation is under the Constitutional Fifth Amendment. Needless to say, the herein concerned circuit court is in direct violation of plaintiff's Due Process, Sixth Amendment, Fourteenth Amendment of the United States Constitution. The right to due process is fundamental in our legal system and must, of necessity, preclude consideration of impermissible reason.
(Doc. 8, Attached Pages (1)-(3))
CONCLUSIONS OF LAW
1. The federal in forma pauperis statute provides in relevant part that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that — (A) the allegation of poverty is untrue; or (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915 (e)(2). Therefore, simply because plaintiff herein has paid a partial filing fee of $5.80 (Doc. 15) does not prohibit this Court from dismissing the case due to frivolity or failure to state a claim on which relief may be granted. Id. In fact, the statute mandates dismissal of frivolous complaints or complaints which fail to state a claim upon which relief may be granted brought by litigants proceeding in forma pauperis. See, e.g., Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999).
2. A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-1832, 104 L.Ed.2d 338 (1989); see also Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) ("A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact."). "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist. A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citations omitted); see also Neitzke, supra, 490 U.S. at 325, 109 S.Ct. at 1832 ("`[F]rivolous,' when applied to a complaint, embraces not only the inarguable legal conclusions, but also the fanciful factual allegations."). The frivolousness determination is a discretionary one which is "entrusted to the discretion of the [district] court entertaining the in forma pauperis petition." Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).
3. Because plaintiff was specifically informed that this Court would consider only those constitutional claims made in his amended complaint and the instructions on this Court's § 1983 form complaint clearly provide that only those defendants named in section III of the complaint would be considered defendants by the Court, the undersigned recommends that the Court find the only named defendant in this case to be Ronald Weaver, the warden of the Loxley Community Work Center. (See Doc. 8) Therefore, the claims plaintiff attempts to assert against the Circuit Court of Baldwin County, Alabama, specifically that the court has deprived him of due process under the Fourteenth Amendment and violated his Sixth Amendment rights, must fail due to Williams' failure to properly identify the court as a defendant.
Even if plaintiff had properly named the Circuit Court of Baldwin County, Alabama as a defendant, the claims asserted against the court need be found frivolous or found to be incognizable since a court is not a person amenable to suit under § 1983. Moity v. Louisiana State Bar Ass'n, 414 F. Supp. 180, 182 (E.D.La.), aff'd, 537 F.2d 1141 (5th Cir. 1976); see McFadden v. Lehman, 968 F. Supp. 1001, 1003 (M.D.Pa. 1997) ("In order to assert an actionable civil rights claim, [plaintiff] must allege that some person has deprived him of a federal right, and that the person who caused the deprivation acted under color of state law.").
4. The only claims asserted against Weaver are that plaintiff was "arrested without a proper reading of rights and charged for the same said offense." (Doc. 9, Attached Page 3) While this Court may not "re-write an otherwise deficient pleading in order to sustain an action . . .[,]" GRJ Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), the Magistrate Judge understands plaintiff to be claiming that Weaver violated his Fifth Amendment rights both by failing to advise him of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and by placing a detainer on him in the Circuit Court of Baldwin County, Alabama after he had been punished by a disciplinary hearings' officer for the same or similar offense.
The undersigned has been a bit cryptic in the description of plaintiff's Fifth Amendment double jeopardy claim because it is unclear which offense plaintiff was disciplined for (that is, being in an unauthorized area or testing positive for marijuana) that later became the subject of the detainer inasmuch as plaintiff describes the charge brought in the Circuit Court of Baldwin County, Alabama as a charge of criminal surveillance. This is but another reason, albeit not the main reason, why the complaint, and this claim in particular, must be dismissed as frivolous. See Lawson v. Latimore, 1999 WL 38268 (E.D.Pa. 1999) ("The complaint as written. . . . states no facts to support claims that conceivably would constitute a specific violation of plaintiff's constitutional rights.").
5. With respect to plaintiff's Miranda claim, it is clear in this Circuit that the failure "to follow Miranda procedures triggers the prophylactic protection of the exclusion of evidence, but does not violate any substantive Fifth Amendment right such that a cause of action for money damages under § 1983 is created." Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999). Therefore, plaintiff's Miranda claim lacks an arguable basis in law and is frivolous. In addition, in light of the holding in Jones, plaintiff has not stated a claim upon which relief may be granted.
Dickerson v. United States, ___ U.S. ___ 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000), which simply held that "Miranda announced a constitutional rule that Congress may not supercede legislatively[,]" obviously has no application in a § 1983 case.
6. Turning to plaintiff's only other claim asserted against Weaver, a double jeopardy claim, it is clear that this claim is legally frivolous since jeopardy does not attach at prison disciplinary hearings. United States v. Newby, 11 F.3d 1143, 1144 (3rd Cir. 1993) ("We, as well as other courts, have held that a prison disciplinary hearing is not a prosecution for Double Jeopardy Clause purposes. Disciplinary sanctions imposed by prison authorities for infractions of prison regulations do not bar a subsequent criminal prosecution."), cert. denied sub nom. Barber v. United States, 511 U.S. 1087, 114 S.Ct. 1841, 128 L.Ed.2d 468 (1994), and cert. denied Newby v. United States, 513 U.S. 834, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994); see United States v. Hernandez-Fundora, 58 F.3d 802, 807 (2nd Cir. 1995) ("[S]ubsequent prosecutions will be barred only in those exceedingly rare circumstances where the disciplinary sanction imposed is grossly disproportionate to the government's interest in maintaining prison order and discipline . . . [W]e conclude that forty-five days of disciplinary segregation was sufficiently related to the government's remedial interest that it did not constitute punishment for double jeopardy purposes."), cert. denied, 515 U.S. 1127, 115 S.Ct. 2288, 132 L.Ed.2d 290 (1995); cf. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) ("Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply."). Moreover, plaintiff's double jeopardy claim is factually frivolous because there has been no showing of a subsequent criminal prosecution for criminal surveillance; rather, all the evidence shows is a lodged detainer. Finally, and perhaps more importantly, there has been no showing that this Court has jurisdiction to consider this claim since it is clear from the plaintiff's complaint that he makes no attack on the prison disciplinaries he received but rather is simply attacking Weaver's actions in placing a detainer on him charging him with criminal surveillance. Such attack is obviously premature since there has been no subsequent prosecution of plaintiff on the criminal surveillance charge and if such an attack was to come it would properly be raised in a habeas corpus proceeding following exhaustion of all state remedies. Accordingly, this claim is factually and legally frivolous and fails to state a claim upon which relief may be granted.
CONCLUSION
Based upon the foregoing reasons, it is recommended that the Court dismiss plaintiff's complaint against the defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) (ii).
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
I. 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 this 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 case 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.