Opinion
CA 00-0211-BH-C.
October 19, 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 Johnny Holley, Jr. filed this action pursuant to 42 U.S.C. § 1983 in this Court on March 9, 2000. Following a complete and thorough review of the 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. Plaintiff's complaint, filed pursuant to 42 U.S.C. § 1983, alleges that he is illegally confined as a result of an April, 1980 first-degree robbery conviction, for which he is presently serving a sentence of life without the possibility of parole, inasmuch as that conviction, plaintiff reasons, is illegal because it is based upon the Constitution of Alabama which should be declared unconstitutional. ( See Doc. 1, at 6-7 of the Form Complaint)
Holley's first-degree robbery conviction and sentence were affirmed on direct appeal, Holley v. State, 397 So.2d 211 (Ala.Crim.App.), writ denied Ex parte Holley, 397 So.2d 217 (Ala. 1981), and, as well, survived the prisoner's federal habeas corpus challenge, Holley v. Smith, 792 F.2d 1046 (11th Cir.), reh'g denied, 803 F.2d 1185 (11th Cir. 1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1902, 95 L.Ed.2d 508 (1987).
2. Plaintiff has attached to the form complaint, specifically following section II of the form, three pages of typed material setting forth the essence of his complaint, as follows:
The plaintiff invokes the jurisdiction of this court to entertain (1983) Civil Right[s] Claim and State and Federal of Constitution claim.
The plaintiff ha[s] been confined in the Alabama Department of Correction[s] on the unconstitutional statutory crime of capital murder, which was enacted from the unconstitutional 1901 constitution of the State of Alabama.
The Constitution of Alabama 1901 offends the equal protection clause of the 14th Amendment of the United States Constitution.
The plaintiff has suffered the infliction of the capital murder statute; [i]nflicted upon [him] discriminator[il]y by reason of the plaintiff's . . . race, social position, class and social prejudices.
The State of Alabama's sole purpose in enacting the Constitution of Alabama 1901 was to establish white supremacy by their own admission.
In the attached minutes as Exhibit (A) from the 1901 convention[,] the President, John B. Knox[,] admits this was the sole purpose for enacting the constitution of Alabama 1901 .
The State of Alabama used the authority given to them to set up courts[,] appointed only white people to these positions, prearranged elections for those that had to be voted on and then expanded the criminal code as its effective means to carry out establishing white supremacy in the State of Alabama.
No corrective procedure or process has been established to bust up the system of white supremacy established in the State of Alabama as of the year 1999.
The criminal charges the defendant was indicted on and made to serve time on are without the force and affect (sic) of the law[,] [d]ue to their enactment and purpose were given in violation of the plaintiff's 5th, 8th, and 14th Amendments of the United States Constitution.
This question of law was establish[ed] during the enactment of the 5th and 14th Amendments of the United States Constitution[,] [w]here the State of Alabama by way of the 10th Amendment of [t]he United States Constitution was given the power to establish its own sovereignty[,] [a]s long as it didn't offend the equal protection clause of the 5th and 14th Amendments of [t]he United States Constitution, but, as exhibit (a) reflects[,] the delegates to an all[-]white convention were not secretive about their purpose. The following statement made by the President, John B. Knox[,] of the convention state in his opening address:
And what is it that we want to do? [W]hy it is within the limits impose[d] by the Federal Constitution, to establish white supremacy in this [S]tate[.]
The 1901 Constitution of the State of Alabama wouldn't have been adopted by the convention or ratified by the electorate in the absence of the racially discriminatory motivation [thereby] rendering it unconstitutional [and] invalidating plaintiff's charge and indictment.
The plaintiff's conviction and sentence was obtained pursuant to invalid provisions enact[ed] pursuant to the authority of the 1901 constitution of the State of Alabama rendering it "void[,]" as its jurisdiction and authority was given by way of the unconstitutional 1901 Constitution of Alabama. Th[is] exercise of power and jurisdiction is "null" and "void."
RELIEF
Plaintiff request[s] [a] declaratory judgment [declaring] the 1901 constitution of the State of Alabama unconstitution[al,] [d]ue to the reason of its existence was to establish white supremacy using the criminal statute to disen[franchise] plaintiff ([an] African American) and poor white people[,] [i]n violation of the 14th Amendment of the United States Constitution.
Plaintiff request[s] injunctive relief ordering his release from confinement as there is no factual basis in law or jurisdiction that gives the criminal judicial system the power to lawfully confine plaintiff.
(Doc. 1, Attached Pages)
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). 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. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court reaffirmed its holding in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Id. at 481, 114 S.Ct. at 2369; see also id. ("We emphasize that Preiser did not create an exception to the `no exhaustion' rule of § 1983; it merely held that certain claims by state prisoners are not cognizable under that provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement."); Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995) ("[D]eclaratory or injunctive relief claims which are in the nature of habeas corpus claims — i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release — are simply not cognizable under § 1983."). Because the relief sought by the prisoner in Heck was monetary damages, as opposed to the injunctive relief requested in Preiser, see id. at 483, 114 S.Ct. at 2370, the Supreme Court determined that its case was not directly controlled by its holding in Preiser, id. at 481, 114 S.Ct. at 2369. Nevertheless, the Supreme Court did conclude in its final analysis that Heck's particular claim was not cognizable under § 1983. See id. at 483, 114 S.Ct. at 2370 ("The issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser: whether the claim is cognizable under § 1983 at all.").
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-487, 114 S.Ct. at 2372 (footnote omitted).
4. In this case, Holley's declaratory and injunctive relief claims clearly challenge the validity of his conviction as he requests immediate release from prison based upon his contention that his 1980 first-degree robbery conviction is invalid because it is dependent upon the Alabama Constitution which should be declared to be unconstitutional by this Court. Because these claims are not cognizable § 1983 claims, Abella, supra, 63 F.3d at 1066 n. 4 ("[I]njunctive and declaratory relief claims which challenge the fact or duration of confinement are simply never cognizable in § 1983 or Bivens actions."), plaintiff's complaint is 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 defendants pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) (ii).