Opinion
CIVIL ACTION NO. 19-1586 SECTION P
02-04-2020
PHILLIP JEROME PARKER v. GARY AYCOCK, ET AL.
JUDGE TERRY A. DOUGHTY
REPORT AND RECOMMENDATION
Plaintiff Phillip Jerome Parker, a prisoner at Ouachita Correctional Center proceeding pro se and in forma pauperis, filed the instant proceeding on approximately December 10, 2019, under 42 U.S.C. § 1983. He names the following defendants: Assistant District Attorney Gary Aycock, Detective Michael Fendall, and Attorney Charles Broomfield. For reasons below, the Court should stay Plaintiff's false-arrest claim against Detective Michael Fendall and dismiss Plaintiff's remaining claims.
This matter has been referred to the undersigned for review, report, and recommendation under 28 U.S.C. § 636 and the standing orders of the Court.
Background
Plaintiff alleges that, on June 7, 2017, he was arrested and charged with one count of first-degree robbery. [doc. # 1, p. 5]. He claims that, when he refused to plead guilty to the lone count and accept a ten-year sentence, Assistant District Attorney Gary Aycock charged him with six additional counts. Id.
On July 19, 2017, the State dismissed one count. [doc. # 1-2, p 8]. Plaintiff claims that he is falsely charged with the remaining six counts, maintaining that D.N.A. evidence proves his innocence. [doc. # 1, p. 3]. The charges are pending. [doc. # 10, p. 2].
Plaintiff claims that Detective Fendall falsely charged him with first-degree robbery despite knowing that he is innocent. Id. at 6.
Plaintiff claims that his counsel, Charles Broomfield, "demonstrated extreme incompetence" by overlooking facts and evidence. [doc. # 10, p. 1].
Plaintiff seeks $200,000.00 for his 2.5 years of incarceration, pain, suffering, extreme stress and anxiety, and the loss of his job and spouse. [doc. #s 1, p. 4; 10, p. 1]. He also asks the Court to release him and to expunge his arrest. [doc. # 10, p. 2].
Law and Analysis
1. Preliminary Screening
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
Under 28 U.S.C. § 1915(h), "'prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program."
A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. Courts are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. Id.
A complaint fails to state a claim on which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it contains sufficient factual content for the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. Twombly, 550 U.S. at 556.
Assessing whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable and that recovery is unlikely. Twombly, supra.
Likewise, a complaint fails to state a claim on which relief can be granted if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations of the complaint. In making this determination, the court must assume that all of the plaintiff's factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" does not satisfy Rule 8. Id. "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." City of Clinton, Ark. v. Pilgrim's Pride Corp, 632 F.3d 148, 152-53 (5th Cir. 2010). Courts are "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 94, 97 (5th Cir. 1994).
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 may dismiss a prisoner's civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).
"To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a "[S]ection 1983 complaint must state specific facts, not simply legal and constitutional conclusions." Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).
2. Prosecutorial Misconduct
Plaintiff claims that, when he refused to plead guilty to one count of first-degree robbery, Assistant District Attorney Aycock falsely charged him with six additional counts. [doc. # 1, p. 5].
"Criminal prosecutors . . . enjoy absolute immunity from claims for damages asserted under [42 U.S.C.] § 1983 for actions taken in the presentation of the state's case." Watson v. Walton, 68 F.3d 465 (5th Cir. 1995). "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity." Kalina v. Fletcher, 522 U.S. 118, 126 (1997) (holding that a prosecutor's conduct in connection with preparing and filing charging documents was protected by absolute immunity).
"Absolute immunity is not a rigid, formal doctrine, but attaches to the functions a prosecutor performs." Moon v. City of El Paso, 906 F.3d 352, 359 (5th Cir. 2018). The Fifth Circuit has consistently held that the decision of when and whether to file criminal charges clearly falls within the scope of a district attorney's prosecutorial duties protected by absolute prosecutorial immunity. See Quinn v. Roach, 326 F. App'x 280, 292 (5th Cir. 2009); Workman v. Calogero, 174 Fed. App'x. 824, 826 (5th Cir. 2006). Absolute immunity shields prosecutors even when they act maliciously, wantonly, or negligently. Loupe v. O'Bannon, 824 F.3d 534, 539 (5th Cir. 2016).
Here, Defendant Aycock is entitled to absolute prosecutorial immunity with respect to Plaintiff's claims that Aycock (1) charged him with six additional counts of first-degree robbery after he refused to plead guilty and (2) continues to prosecute him despite his innocence. As above, the decision of when and whether to file criminal charges clearly falls within the scope of a district attorney's prosecutorial duties protected by absolute prosecutorial immunity. See Imbler, 424 U.S. at 430-31; see also Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (a prosecutor's activities in plea bargaining are an essential component of the criminal justice system and merit the protection of absolute immunity) (cited with approval by Tubwell v. Dunn, 12 F.3d 1097 (5th Cir. 1993)); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979) (finding, where the plaintiff alleged that prosecutors threatened him with further prosecution, that the prosecutors were immune).
Plaintiff also maintains that, by giving him "numerous court set offs," Aycock is responsible for his continued incarceration (over thirty-one months). To the extent Plaintiff claims that Aycock violated his right to a speedy trial, Aycock is immune. See Hunter v. James, 717 F. App'x 500, 501 (5th Cir. 2018) ("Watkins is absolutely immune from § 1983 immunity with respect to Hunter's speedy trial claim."); Green v. New Orleans Police Dep't, 2013 WL 5739076, at *4 (E.D. La. Oct. 22, 2013) (finding, where the plaintiff alleged that a district attorney failed, under La. Code Crim. Proc. Ann. art. 701, to prosecute him in a timely manner, that the district attorney was immune).
See also Esparza v. Munoz, 3 F.3d 438 (5th Cir. 1993) (finding a prosecutor immune from a claim of prosecuting the plaintiff without sufficient evidence); Nickerson v. Texas, 209 F.3d 718 (5th Cir. 2000) (finding prosecutors immune from claims that they filed charges against the plaintiffs while possessing exculpatory evidence); Green v. Texas Gov't, 704 F. App'x 386 (5th Cir. 2017) (finding prosecutors immune from claims that they withheld exculpatory evidence and charged the plaintiff without probable cause); Lawson v. Speetjens, 42 F.3d 642 (5th Cir. 1994) (recognizing that immunity applies even if a plaintiff alleges that the prosecutor is knowingly using perjured testimony).
Under Plaintiff's allegations, Aycock acted only in the course of his role as a governmental advocate. Accordingly, the Court should dismiss these claims as frivolous and because Plaintiff seeks monetary relief from a defendant immune from such relief. 3. Heck v. Humphrey and Wallace v. Kato
Plaintiff claims that Detective Fendall falsely charged him with multiple counts of first-degree robbery. Plaintiff's charges are pending. He seeks monetary relief and expungement of his arrest.
If Plaintiff is convicted of first-degree robbery, he may not be entitled to seek relief for his false-arrest claim until the conviction is reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477 (1994) (holding that a successful civil rights action that would necessarily imply the invalidity of the plaintiff's conviction or sentence must be dismissed unless the plaintiff first shows that the conviction or sentence has been reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus).
While the rule in Heck does not extend to pending criminal matters, a successful false-arrest claim, under Plaintiff's allegations, could necessarily imply the invalidity of any future conviction. See Wallace v. Kato, 549 U.S. 384, 393-94 (2007) (finding that the Heck rule applies only when there has been a conviction or sentence that has not been invalidated, not to pending criminal charges).
A successful claim will not necessarily imply the invalidity of a conviction "if the factual basis for the conviction is temporally and conceptually distinct from" the claim. Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008).
Prevailing on the false-arrest claim—and establishing that the officer lacked probable cause to charge Plaintiff with first-degree robbery—could necessarily imply the invalidity of a conviction because the claim is essentially a collateral attack on a criminal judgment's validity. Thomas v. Pohlmann, 681 F. App'x 401, 406 (5th Cir. 2017) (citing Cormier v. Lafayette City-Par. Consol. Gov't, 493 Fed. App'x. 578, 583 (5th Cir. 2012)); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) ("[The plaintiff's] proof to establish his false arrest claim, i.e., that there was no probable cause to arrest [for the crime he was convicted of], would demonstrate the invalidity of [the conviction].").
See also Queen v. Purser, 109 Fed. App'x. 659 (5th Cir. 2004) (a former inmate's false-arrest claim necessarily challenged whether the evidence, which an officer seized following an allegedly illegal stop, and which led to his subsequent conviction, supplied probable cause for his arrest; thus, the claim was not cognizable absent a showing that the conviction had been invalidated); Chande v. Moore, 606 F. App'x 238, 239 (5th Cir. 2015) ("Because a showing that there was no probable cause for the challenged entry, search, seizure, and arrest would call into question the validity of [plaintiff's] resulting conviction for unlawful possession of a controlled substance with intent to deliver in a drug-free zone," the plaintiff's claims were barred by Heck); Goldston v. City of Monroe ex rel. Monroe Police Dep't, 621 F. App'x 274 (5th Cir. 2015).
Federal courts may stay civil rights claims that attack the legality of a detainee's arrest, prosecution, and detention until the allegedly improper state prosecution concludes. See Kato, 549 U.S. at 393-94 ("If a plaintiff files a false-arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court . . . to stay the civil action until the criminal case . . . is ended.") (emphasis supplied).
Here, Plaintiff's claim is related to rulings that will likely be made concerning his pending charges. Accordingly, the Court should stay this claim, along with Plaintiff's request for expungement, pending the outcome of the ongoing criminal prosecution.
Clearly, securing expungement could necessarily imply the invalidity of Plaintiff's potential conviction. See Mitchell v. Lanehart, 232 F.3d 211 (5th Cir. 2000) (finding, where a plaintiff sought expungement of a state robbery conviction, that Heck precluded Plaintiff from filing his action because the plaintiff was "essentially challenging his robbery conviction . . . .").
That the State dismissed one count is of no consequence. Plaintiff, plainly, seeks relief for his allegedly unlawful arrest. In this respect, [t]he specific crimes charged are irrelevant if the § 1983 claims would cause a civil judgment in the plaintiff's favor to 'collide' with the criminal judgment. It also is immaterial that the plaintiff was not convicted on every count charged. False-arrest and malicious-prosecution claims—as attacks on probable cause—focus on the validity of the arrest. Thus, [i]f there was probable cause for any of the charges made . . . then the arrest was supported by probable cause, and Heck applies. Cormier, 493 F. App'x at 583-85 (internal quotation marks and quoted sources omitted).
4. Defendant Charles Broomfield
Plaintiff claims that his counsel, Charles Broomfield, "demonstrated extreme incompetence" by overlooking facts and evidence. [doc. # 10, p. 1].
To state a claim under Section 1983, a plaintiff must allege that a defendant acted "under color" of state law. 42 U.S.C. § 1983. "Anyone whose conduct is 'fairly attributable to the state' can be sued as a state actor under § 1983." Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). "Fair attribution" means: (1) "the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible"; and (2) "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar, 457 U.S. at 937. Of import, "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).
Here, Defendant Broomfield did not act under color of state law: deciding what evidence to introduce, which arguments to raise, and which witnesses to call are, manifestly, traditional functions of counsel. See Ellison v. De La Rosa, 685 F.2d 959, 960 (5th Cir. 1982) (finding, where the plaintiff alleged that his counsel was ineffective "for allowing two fundamentally defective indictments to be prosecuted against him," that counsel was performing a lawyer's traditional function); Amir-Sharif v. Dallas Cty. Pub. Defs. Office, 233 F. App'x 364, 365 (5th Cir. 2007) (finding, where a plaintiff was concerned with the "quality of legal assistance being provided to him by appointed counsel and the public defender[,]" that "the attorney defendants . . . are not state actors for § 1983 purposes."); Linn v. Saitin, 575 F. App'x 531, 532 (5th Cir. 2014) (affirming, where the plaintiff alleged that a public defender and her supervisor rendered ineffective assistance, that the defendants were not state actors).
See also O'Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972) (holding that the ineffective assistance of a public defender in a criminal case does not raise a claim cognizable under Section 1983 because no "state action" is involved and because Section 1983 was not intended as a "vehicle for prosecuting malpractice suits against court-appointed attorneys."); U.S. ex rel. Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir. 1976) ("The court-appointed attorney, like any retained counsel, serves his client. He represents the client, not the state. The ancillary facts that the court has a hand in providing counsel, and that the attorney selection board in Orleans Parish obtains its authority from statute, do not alter the attorney-client relationship. That relationship is our concern here. Accordingly, the district court correctly disallowed any [Section] 1983 claim raised by Plaintiff-Appellant, since the situation presents no state action.").
The Court should dismiss this claim.
5. Habeas Corpus Relief
Plaintiff seeks release from incarceration. Although Plaintiff filed this action under 42 U.S.C. § 1983, he challenges the very fact and duration of his physical imprisonment. Plaintiff should, after he exhausts his state court remedies, pursue his request for immediate release from custody through a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Preiser v. Rodriguez, 411 U.S. 475, 93 (1973) ("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus."); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (construing a request for release from pending state criminal proceedings as a habeas petition under Section 2241). Accordingly, the Court should deny Plaintiff's request.
The undersigned again cautions that Plaintiff must first exhaust his available state court remedies before seeking habeas relief in this Court. See id. (observing that if "habeas corpus is the exclusive federal remedy . . . a plaintiff cannot seek the intervention of a federal court until he has first sought and been denied relief in the state courts, if a state remedy is available and adequate."). Plaintiff is further cautioned that the Court may abstain, under Younger v. Harris, 401 U.S. 37 (1971), or Dickerson, 816 F.2d at 225, if Plaintiff asks the Court to interfere with his ongoing criminal prosecution. See Gibson v. Orleans Par. Sheriff, 2014 WL 1066987, at *1 (5th Cir. Mar. 20, 2014) (affirming abstention under Younger v. Harris, where a petitioner sought habeas corpus relief under 28 U.S.C. § 2241).
See also Dickerson v. State of La., 816 F.2d 220, 225 (5th Cir. 1987) ("Despite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.").
"Under the Younger abstention doctrine, federal courts should generally decline to exercise jurisdiction when: (1) the federal proceeding would interfere with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges." Gates v. Strain, 885 F.3d 874, 880 (5th Cir. 2018) (internal quotation marks and quoted sources omitted). Under Dickerson, "federal courts should abstain . . . if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Dickerson, 816 F.2d at 225.
Recommendation
For the foregoing reasons, IT IS RECOMMENDED that Plaintiff Phillip Jerome Parker's false-arrest claim, along with his request for expungement, be STAYED under the following conditions:
a. If Plaintiff intends to proceed with this claim, he must, within thirty (30) days of the date the criminal proceedings against him conclude, file a motion to lift the stay;
b. If the stay is lifted and the Court finds that Plaintiff's claim would impugn the validity of his conviction, the action will be dismissed under Heck; if no such finding is made, the action will proceed absent some other bar to suit;
c. Plaintiff should not file any more documents concerning this particular claim (other than an objection to this Report and Recommendation if he so chooses) in this action until the state court proceedings conclude; and
d. Defendant shall not be required to answer this particular claim during the stay, and Plaintiff may not seek a default judgment or conduct any discovery during the stay.
IT IS FURTHER RECOMMENDED that Plaintiff's claims against Assistant District Attorney Gary Aycock be DISMISSED WITH PREJUDICE as frivolous, for failing to state claims on which relief may be granted, and for seeking monetary relief against a defendant immune from such relief.
IT IS FURTHER RECOMMENDED that Plaintiff's claims against Attorney Charles Broomfield by DISMISSED WITH PREJUDICE as frivolous and for failing to state claims on which relief may be granted.
IT IS FURTHER RECOMMENDED that Plaintiff's request for release from incarceration be DISMISSED WITHOUT PREJUDICE to Plaintiff's right to pursue habeas corpus relief after he exhausts all available state court remedies.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) 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 fourteen (14) days after being served with a copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) 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 Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).
In Chambers, Monroe, Louisiana, this 4th day of February, 2020.
/s/_________
Karen L. Hayes
United States Magistrate Judge