Opinion
CIV-21-760-R
08-04-2021
DENNIS RAY RIGSBY, JR., Plaintiff, v. GREAT STATE OF ARKANSAS, et. al., Defendant.
REPORT AND RECOMMENDATION
GARY M PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state pre-trial detainee appearing pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A, the undersigned finds Plaintiff's action should be dismissed.
I. Background
Plaintiff is currently confined at the Custer County Jail located in Arapaho, Oklahoma. Doc. No. 1 (“Comp.”). He was arrested and charged on June 8, 2020, with First Degree Murder. See Oklahoma State Courts Network, Case No. CF-2020-123, District Court of Custer County. In his Complaint, Plaintiff names as Defendants the “Great State of Arkansas, ” Mr. Parker, “Public Defender of Boone County[, ] Arkansas, ” and the “Grate [sic] State of Oklahoma.” Comp. at 10-11.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=custer&number=CF- 2020-123
Plaintiff filed the current action on July 30, 2021. Though the Complaint is not a model of clarity, it appears that certain of Plaintiff's claims arise from a previous state criminal conviction in Arkansas. Id. at 11, 14, 15, 16-21. According to Plaintiff, he was charged with a felony in Arkansas and the public defender, Mr. Parker, advised Plaintiff that if he signed the plea agreement, he would likely be out of jail soon based on his time already served. Id. Plaintiff did sign said agreement but now asserts the United States Constitution does not authorize plea agreements. Id. at 14. He also complains that he was never advised the conviction could be used to enhance future charges and/or sentences. Id. at 16.
Plaintiff also complains his 2004 trial in Oklahoma County state court, in which he was found guilty of first-degree manslaughter, was unconstitutional, though the basis for this allegation is not entirely clear. Id. at 19. Plaintiff states that the jury was not impartial because of a “bait” option in the jury instructions and that said instruction was included by his attorney in retaliation for having run from the attorney's wife, a bail bondsperson. Comp. at 19. He also states that he was not informed of the “nature of the charge” until after his conviction. Id.
See also Oklahoma State Courts Network, Oklahoma County District Court, State v. Rigsby, Case No. CF-2003-2175 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2003-2175
By this action, Plaintiff asserts claims under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Id. at 13, 14, 18, 19. Plaintiff requests the United States Constitution be amended to prohibit plea agreements, monetary compensation for those who have previously signed the same, reimbursement for his current filing fees, expungement of his previous felony convictions, and $30,000.00 to compensate for taking freedoms, violating his right to counsel, and being punished twice for the same act. Id. at 14, 15, 16, 21.
Plaintiff has not paid any filing fees in this action and in light of the recommendation herein that this matter be dismissed, the undersigned is also recommending his Application for Leave to Proceed In Forma Pauperis (Doc. No. 2) be denied as moot.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Claims Arising from Previous Convictions
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court addressed “whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983.” Id. at 478. The case involved a § 1983 claim arising out of alleged unlawful acts by state prosecutors and police officers that led to the plaintiff's arrest and ultimate conviction of a criminal offense. Id. at 478-79. Therein, the Supreme Court held that “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at 487. If so, the court must dismiss the complaint “unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id.; see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” (emphasis in original)).
Turning to the present case, “[t]he starting point for the application of Heck [] is the existence of an underlying conviction or sentence that is tied to the conduct alleged in the § 1983 action.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007). Plaintiff plainly sets out in his Complaint that he is challenging the validity of his previous criminal convictions based on, inter alia, the effectiveness of his previous counsel, whether his plea was knowing and voluntary, the lawfulness of a plea agreement, and the impartiality of his jury. Supra. Moreover, he specifically requests the Court expunge each of his previous convictions. Id. Accordingly, Heck bars Plaintiff's § 1983 claims and this action should be dismissed based upon Plaintiff's failure to state a claim upon which relief can be granted. See Archilta v. Oklahoma, 123 Fed.Appx. 852, 857 (10th Cir. 2005) (“Since Archilta's claims necessarily imply the invalidity of his convictions and he cannot demonstrate that his convictions have already been invalidated, the district court properly [applied Heck and] held that the claims must be dismissed pursuant to 28 U.S.C. § 1915[] for failure to state a claim.”).
IV. Eleventh Amendment Immunity
Plaintiff has named Oklahoma and Arkansas as Defendants in this matter.
Pursuant to the Eleventh Amendment, states are immune from an award of monetary damages. A state may lose its immunity only by waiving it or if Congress abrogates it. Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). The United States Supreme Court has previously held Congress did not abrogate states' Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979). Thus, unless the state unequivocally waives its Eleventh Amendment immunity, it prevents an award of money damages against the state. See Guttman v. Khalsa, 669 F.3d 1101, 1110 (10th Cir. 2012) (“Although a state may waive the sovereign immunity granted to it under the Eleventh Amendment, we require a showing of unequivocal intent to do so.”).
Neither Arkansas nor Oklahoma have waived sovereign immunity for § 1983 claims. See Clifton v. Wolfe, No. 2:17CV00024-BRW-JJV, 2017 WL 2608862, at *2 (E.D. Ark. June 5, 2017) (dismissing § 1983 claim against the state based on Eleventh Amendment immunity (citing Hadley v. N. Ark. Cmty. Tech. Coll., 76 F.3d 1437, 1438 (8th Cir. 1996)); Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (“Oklahoma has not waived sovereign immunity against § 1983 claims in federal district court.”). Thus, both states are entitled to Eleventh Amendment immunity against Plaintiff's claims for monetary damages.
Further, in Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), the United States Supreme Court held that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Thus, neither Oklahoma nor Arkansas are appropriate parties to this lawsuit.
V. Public Defender Parker
To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Determining whether Plaintiff's well-pled factual allegations clear this threshold is “a contextspecific task, ” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), that depends on both the specific constitutional violation alleged, Graham v. Connor, 490 U.S. 386, 393-94 (1989), and the capacity in which each defendant is sued. Kentucky v. Graham, 473 U.S. 159, 165-68 (1985).
Plaintiff complains that his Arkansas attorney, Mr. Parker, identified as a public defender, violated his constitutional rights by advising him to sign a plea agreement. The United States Supreme Court has long held that “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). The sole exception to this rule is where the public defender conspired with state officials to deprive the defendant of his constitutional rights. Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir. 1994) (citing Tower v. Glover, 467 U.S. 914, 920 (1984)). Notably, however, “[w]hen a plaintiff in a § 1983 action attempts to assert the necessary ‘state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.” Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983); see Hunt, 17 F.3d at 1268 (applying this standard to the plaintiff's § 1983 claim against his state public defender).
Advising one's client is a traditional function that an attorney performs as counsel to a defendant in a criminal prosecution. Dodson, 454 U.S. at 318-19, 319 n.8. Plaintiff does not plausibly suggest-let alone allege “specific facts demonstrating agreement and concerted action”-that Mr. Parker conspired with a state official to deprive Plaintiff of any constitutionally protected right in his criminal case. McNally v. Colo. Pub. Def., 15 Fed.Appx. 645, 647 (10th Cir. 2001). Accordingly, Plaintiff's claims against Mr. Parker should be dismissed with prejudice under 28 U.S.C. § 1915A. See Jackson v. Brummett, 311 Fed.Appx. 114, 115-16 (10th Cir. 2009) (affirming district court's dismissal with prejudice of the pro se plaintiff's § 1983 claims against his state public defender where leave to amend would be futile).
RECOMMENDATION
Based on the foregoing findings, it is recommended that Plaintiff's action be dismissed without prejudice, pursuant to 28 U.S.C. § 1915A(b), as his claims are barred by Heck. Additionally, Plaintiff's claims against the states of Oklahoma and Arkansas should be dismissed as each are immune from liability under the Eleventh Amendment. Finally, Plaintiff's claims against Defendant Parker should be dismissed for failure to state a claim upon which relief can be granted because Defendant Parker is not a state actor. The dismissal should be counted as a “strike” pursuant to 28 U.S.C. § 1915(g).
In light of the recommendation herein, the undersigned also recommends Plaintiff's Application for Leave to Proceed In Forma Pauperis (Doc. No. 2) be denied as moot.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by August 24th , 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.