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In Williams v. Freesemann, 2015 WL 6798946 at * 1 n. 4 (S.D. Ga. Oct. 15, 2015), this Court noted that some inmate-litigants bypass those forms in favor of “home-brewed” filings.
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Case No. CV415-265
10-15-2015
ERIC ADARYLL WILLIAMS, Plaintiff, v. JUDGE PENNY HAAS FREESEMANN and CHRISTINE SIEGER BARKER, Defendants.
ORDER
Invoking the "International Organization Immunities Act," Eric Adaryll Williams has filed a "Petition of Truth," doc. 1, insisting that the judge and prosecutor in his armed robbery conviction in fact were not public officials. Id. 3-4. The Clerk has construed this petition as an initial filing in a "Prison Condition" lawsuit. That was a good guess on the Clerk's part since Williams has not used a form complaint or petition in asking, "in the name of Jesus Christ, that this honorable court will grant petitioner . . . his freedom, liberty & to be released from prison & back with his family, & wages for injuries in the amount of $20,000,000.00 (twenty million dollars), amen." Id. at 11.
"[F]ederal laws pertaining to service of process on a foreign entity are codified in 28 U.S.C. §§ 1602 et seq., the Foreign Sovereign Immunities Act. . ., and 22 U.S.C. §§ 288 et seq., the International Organizations Immunities Act . . . ." Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 922 (11th Cir. 2003).
See attached Georgia Department of Corrections "active inmate" record and Chatham County Georgia docket showing his 2008 conviction.
The Court has inserted plaintiff's middle name in the caption of this case because that is what is reflected in the (attached) official records. The Clerk shall amend the docket caption accordingly, and all subsequent filings shall conform.
Williams also moves for leave to proceed in forma pauperis (IFP). Doc. 2. The Court DEFERS ruling on that and instead DIRECTS the Clerk to send him: (1) a 42 U.S.C. § 1983 form complaint; and (2) a 28 U.S.C. § 2254 form petition, both with associated IFP forms. There are separate filing fees involved in those cases ($5 for § 2254; $350 for § 1983), and separate consequences that accompany both actions.
This Court's § 1983 complaint form, which is availed to all prisons and jails, see http: //www.gasd.uscourts. gov/pdf/prisoner1983.pdf. compels inmates like Williams to disclose prior lawsuits. Id. at 1-2. That data is necessary to enforce the "Three Strikes" rule recently illuminated in Owens v. Morales, 2015 WL 5040245 at * 1 (S.D. Ga. Aug. 25, 2015). In that regard, the Court has independently located Williams v. Williams, CV614-011 (S.D. Ga. Oct. 6, 2014) (dismissing a § 1983 case, in which Williams used a § 1983 form complaint, on the merits); see also id., doc. 40 (appeal dismissed for failure to prosecute); Williams v. Martin, CV615032 (S.D. Ga. 2015) (active § 1983 case commenced with a "home-brewed" complaint). See Boney v. Hickey, 2014 WL 4103918 at * 4-5 (S.D. Fla. Aug. 15, 2014) (collecting cases that illuminate what constitutes a 28 U.S.C. § 1915(g) strike, three of which can lead to a substantial curtailment on an inmate's ability to proceed IFP).
In that regard, the Court rejects any attempt by an inmate to advance a habeas claim using a "Trojan Horse" cover claim under § 1983 or, as is evident here, a facially absurd claim premised on a statute arbitrarily plucked out of the federal code. See Miller v. Williams, 2011 WL 1898921 at * 1 (S.D. Ga. May 17, 2011) (advising dismissal of a "successive 28 U.S.C. § 2254 petition masquerading as an "Application for Leave for an Executive Clemency Hearing"); see also id. at * 2 (sanctioning abusive habeas filer, and citing, inter alia, Alexander v. United States, 121 F.3d 312, 315-16 (7th Cir. 1997) (imposing, inter alia, a $500 sanction on a pro se inmate raising frivolous arguments in support of a third successive 28 U.S.C. § 2255 motion, and instituting "paper-less review" of any future collateral attack filings)), adopted, 2011 WL 2181628 (S.D. Ga. Jun, 2, 2011); Capers v. Missouri, 2011 WL 2600560 at * 2 (S.D. Ga. June 10, 2011) (dismissing a successive habeas petition where the petitioner "deceitfully advanced" it "via [a] lie of omission").
Within 30 days after the Clerk serves Williams with a copy of this Order and those forms, he must re-file whatever it is he seeks to do with this case. If he wants to sue someone for damages, he should use the § 1983 form and associated IFP forms. If he seeks only relief from his conviction (and no money damages), then he should use the § 2254 form and associated IFP motion. What he cannot do is sluff both into a home-brewed "Petition of Truth," which will be dismissed outright (but not before directing his Prison Custodian to pay from Williams' account a $5 filing fee to the Clerk) if he fails to comply with these directions.
Since the Court is not acting on his present filing, no "Castro" warning is required. See Castro v. United States, 540 U.S. 375, 382-83 (2003) (court that wishes to recharacterize pro se litigant's pleading as first 28 U.S.C. § 2255 motion must (1) notify litigant of court's intent, (2) warn litigant that recharacterization means that subsequent § 2255 motion will be subject to restrictions on "second or successive" motions, and (3) give litigant opportunity to withdraw motion or to amend it to include all § 2255 claims). Castro applies to § 2254 petitions and to any filing that in substance is a § 2254 petition -- if reached on the merits. Compare Smith v. Hobbs, 490 F. App'x 833, 833 (8th Cir. 2012) (state prisoner was entitled to proper notice, warnings, and opportunity to withdraw his pleadings before his pro se § 1983 action challenging his sentence was recharacterized as habeas petition); with Jones v. O'Neal, 2012 WL 6084650 at * 1 (S.D. Ga. Dec. 6, 2012) (no Castro warning needed since petitioner had failed to exhaust state remedies, thus warranting dismissal without prejudice); cited in Alexander v. Georgia, 2015 WL 2255130 at * 1 n. 1 (S.D. Ga, May 15, 2015) (no Castro warning needed "because the Court would not be reaching his petition on the merits, only on procedural grounds."). --------
SO ORDERED, this 15th day of October, 2015.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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