Opinion
Civil Action No. 2:19-1129
09-25-2020
ALONZO LAMAR JOHNSON, Plaintiff, v. USA, et al., Defendants.
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff, Alonzo Lamar Johnson, is a federal prisoner who is serving a term of imprisonment imposed by this Court in 2013 in United States v. Johnson, No. 08-cr-374-13 (W.D. Pa.). In his Amended Complaint (ECF No. 10), he raises claims stemming from his federal prosecution and seeks money damages for his alleged unlawful conviction. For the reasons that follow, it is respectfully recommended that this action be dismissed prior to service of the Amended Complaint and without leave to amend as legally frivolous and/or for failure to state a claim in accordance in accordance with 28 U.S.C. § 1915A and § 1915(e).
II. REPORT
A. Standard of Review
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), courts are required to screen complaints where, as is the case here, the plaintiff has been granted leave to proceed in forma pauperis, 28 U.S.C. § 1915(e), or seeks redress from an officer or employee of a governmental entity. 28 U.S.C. § 1915A. These statutes require the Court to dismiss a complaint that, among other things, is frivolous, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief.
A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989); Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). The legal standard for dismissing a complaint under the PLRA for failure to state a claim is identical to the legal standard used when ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant.
B. Background
The following background is based upon the facts alleged in the Amended Complaint as well as information contained on the docket of Plaintiff's other cases with this Court, which are part of the public record and of which the Court may take judicial notice.
On August 21, 2009, a superseding indictment was filed in this Court at criminal action number 08-cr-374 charging Plaintiff, Jerome Lamont Kelly, Eric Alford, Anthony Hoots, and eleven others with conspiracy to distribute five kilograms or more of a mixture and substance containing a detectable amount of cocaine and fifty grams or more of a mixture containing a detectable amount of cocaine base from around 2007 until around October 2008. The conspiracy charged in the superseding indictment was referred to as the "Alford conspiracy." Several of Plaintiff's co-defendants pleaded guilty. In April 2012, Plaintiff and Kelly were tried before a jury. Judge Joy Flowers Conti presided over the jury trial. The jury found Plaintiff and Kelly guilty as charged in the superseding indictment. United States v. Jerome Lamont Kelly, Alonzo Lamar Johnson, No. 08-cr-374, 2013 WL 1182899, *1 (W.D. Pa. Mar. 21, 2013).
In her decision denying Plaintiff's motion for judgment of acquittal, Judge Conti summarized the evidence presented at Plaintiff's trial. She quoted extensively from the intercepted phone calls between Hoots and Plaintiff that the prosecution played for the jury, which demonstrated that Plaintiff engaged in standardized, weekly purchases of 4 ½ ounces of cocaine from Hoots, with the knowledge that Hoots was part of the bigger operation. Id. at *8-*10.
On July 30, 2013, Judge Conti sentenced Plaintiff to a term of imprisonment of 300 months. Plaintiff raised numerous issues in his direct appeal, including his contention that the evidence was insufficient to support the conviction. He also asserted that Judge Conti erred in denying Plaintiff's motion to suppress the wiretap evidence because the order authorizing the interceptions bears a rubber-stamped signature of the authorizing judge, as opposed to the judge's handwritten signature. The United States Court of Appeals for the Third Circuit affirmed Plaintiff's conviction in United States v. Johnson, 639 F. App'x 78 (3d Cir. 2016).
Plaintiff subsequently filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He raised numerous claims for relief, including that his trial attorney was ineffective for failing to preserve a challenge to the indictment and object to the extension of the grand jury. Judge Conti denied Plaintiff's § 2255 motion and the Court of Appeals denied his subsequent application for a certificate of appealability. United States v. Johnson, No. 08-cr-374, 2019 WL 266375 (W.D. Pa. Jan. 18, 2019); ECF No. 1263 of No. 08-cr-374.
This civil action is best viewed as part of Plaintiff's continued effort to challenge his conviction. The Amended Complaint (ECF No. 10) asserts that Plaintiff is innocent and, therefore, is unjustly incarcerated. It names as Defendants the United States and numerous individuals, including Judge Conti and other members of this Court (Judge Donetta Ambrose and Judge Nora Barry Fischer); two former Magistrate Judges (the late Magistrate Judge Amy Reynolds Hay and Magistrate Judge Robert C. Mitchell); the former Clerk of Court (Robert J. Barth); Judge Ambrose's former Courtroom Deputy Clerk (Jack Hamilton); the grand jury foreperson; Plaintiff's co-defendant, Hoots; Plaintiff's trial attorney and other former attorneys; Kelly's trial attorney; numerous attorneys with the United States Attorney's Office for the Western District of Pennsylvania who prosecuted him; various police officers, detectives, and other law enforcement agents or investigators; the Mayors of Pittsburgh and of Columbus, Ohio from 2007 to 2009; and the Governors of Pennsylvania and Ohio from 2007 to 2009.
The Amended Complaint (ECF No. 10) asserts a claim of malicious prosecution and also alleges that Defendants conspired to secure Plaintiff's unlawful conviction in violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Plaintiff claims that his trial attorney was ineffective, and that the prosecutors and the judges involved in his criminal case engaged in various forms of misconduct to obtain his unlawful conviction. For example, the Amended Complaint claims that: the prosecution suppressed exculpatory evidence, forged grand jury documents, and knowingly introduced false testimony and illegally obtained evidence during the grand jury proceeding and at his trial; Judge Conti should have suppressed the wiretap evidence because the authorizing judge's signature was forged, had no jurisdiction to commence his trial, and unlawfully moved to constructively amend the indictment; and Plaintiff's trial attorney provided him with ineffective assistance by failing to move for a mistrial, failing to call co-defendant Alford as a defense witness, and providing Plaintiff with wrong advice pertaining to the drug quantity listed on the verdict slip. As relief, Plaintiff seeks the "sum of $1,296,000 for each day he has been unjustly incarcerated for Criminal Case Number 08-374, and whatever other relief" the Court deems appropriate. (ECF No. 10 at 14).
Plaintiff filed a "correction" to the Amended Complaint (ECF No. 9) in which he asserted that the prosecution knowingly introduced false testimony to the grand jury. He also recently filed a two-page proposed amendment to the Amended Complaint (ECF No. 16) in which he makes additional allegations of judicial and prosecutorial misconduct, which are considered herein as if brought in the Amended Complaint.
This is not the first time Plaintiff has attempted to challenge his federal conviction in a civil action. In 2012, he brought a civil action in this Court at Johnson v. Song, et al., No. 12-cv-98 against officers of the United States, including some of the same individuals named as Defendants in the instant lawsuit. Plaintiff also raised some of the same or similar claims to those he brings in the instant lawsuit. For example, he claimed in that case that the defendants violated his Fourth Amendment rights with respect to obtaining the wiretap evidence and that they conspired to unlawfully indict him. That civil action was dismissed prior to service and without leave to amend because success on his claims would necessarily call into question the validity of his conviction or sentence in violation of the rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Johnson v. Song, et al., No. 12-cv-98, 2012 WL 895441 (W.D. Pa. Feb. 6, 2012), report and recommendation adopted by 2012 WL 896410 (W.D. Pa. Mar. 15, 2012). The Court should reach the same conclusion here because, since the conclusion of that case, Plaintiff's conviction has not been reversed on direct appeal, expunged by executive order, or called into question by success in a § 2255 collateral action.
C. Discussion
Generally, a prisoner's challenge to the validity of his confinement or to matters affecting its duration falls with the province of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The Supreme Court in its seminal case Heck v. Humphrey, 512 U.S. 477 (1994), held that, although a civil rights action under 42 U.S.C. § 1983 authorizes actions by persons deprived of constitutional rights against persons acting under color of state law, a state prisoner is not entitled to use § 1983 as a vehicle to pursue redress if success in that action would necessarily demonstrate the invalidity of confinement or its duration.
In Heck, a state prisoner convicted of voluntary manslaughter brought a civil rights action against prosecutors and a police investigator, asserting that the defendants engaged in an unlawful, unreasonable and arbitrary investigation leading to Heck's arrest; knowingly destroyed evidence that could have proven Heck's innocence, and caused an illegal voice identification procedure to be used at his state trial. Heck, 512 U.S. at 479. The Supreme Court rebuffed such an effort and held as follows:
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. Thus, 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; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Id. at 486-87 (footnotes omitted). "Although Heck involved a state prisoner, circuit courts have concluded that the rule is equally applicable to federal prisoners, including civil rights actions brought against federal actors pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),...and civil actions brought under the Federal Torts Claims Act, 28 U.S.C. §§ 2671-2680[.]" Brian R. Means, FEDERAL HABEAS MANUAL § 2:9, Westlaw (database updated May 2020) (collecting cases).
Plaintiff's conviction remains intact. The Amended Complaint acknowledges that he is pursuing this lawsuit so that he can "prove that he has been wrongfully arrested and convicted knowingly and intentionally by the Government, the Trial Judge, Joy Flowers Conti, and the United States Prosecutor's Office." (ECF No. 10 at 6). It is thus evident that this civil action is designed to result in a finding, accompanied by a damage award, that Plaintiff was wrongly convicted and is unlawfully incarcerated. Because a judgment in his favor on his numerous claims that Defendants violated his constitutional rights to secure his unlawful conviction, including his Fourth Amendment claim challenging the wiretap evidence, would necessarily imply the invalidity of that conviction, Plaintiff brings the precise type of claim barred by Heck. See, e.g., Keeling v. Attorney General for Pennsylvania, 575 F. App'x 16, 18 (3d Cir. 2014) ("Here, [plaintiff] affirmatively contends that the allegedly illegal search and seizure resulted in his unlawful conviction, and accordingly, he cannot bring this claim unless and until he successfully attacks his conviction."); O'Brien v. United States Federal Government, 763 F. App'x 157, 158 n.3 (3d Cir. 2019) (§ 2255 proceeding is the exclusive means for federal prisoner to seek relief for Sixth Amendment claim of ineffective assistance of counsel).
Additionally, Plaintiff's malicious prosecution claim requires the following five elements: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding terminated in plaintiff's favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. See, e.g., Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014). Plaintiff's criminal proceeding has not been resolved in his favor and, therefore, he fails to establish a requisite element of a malicious prosecution claim.
To the extent that the Amended Complaint asserts a claim of false arrest or false imprisonment, such claims must be dismissed because Plaintiff was arrested and detained pursuant to legal process. Accordingly, such claims are essentially a malicious prosecution claim which, as set forth above, must be dismissed pursuant to Heck's favorable termination rule. See, e.g., O'Brien v. United States Federal Government, No. 18-cv-1787, 2018 WL 3649029, *7 (E.D. Pa. July 31, 2018), affirmed 763 F. App'x 157 (3d Cir. 2019) (citing, inter alia, Wallace v. Kato, 549 U.S. 384, 389 (2007) and Heck, 512 U.S. at 484).
The docket for Plaintiff's criminal case reflects that he was indicted on August 21, 2009, arrested pursuant to a warrant on September 9, 2009, and arraigned on September 14, 2009. --------
Finally, to the extent that any of Plaintiff's claims alleging misconduct on the part of the prosecutorial defendants pertaining to the grand jury proceeding that are not barred by Heck, such claims must be dismissed because it is well settled that prosecutors are immune from liability for acts that are "intimately associated with the judicial phase of the criminal process" such as "initiating a prosecution and...presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Absolute immunity extends to the decision to initiate a prosecution, id. at 431, including "soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings," Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (emphasis added). Similarly, insofar that Plaintiff sued a defendant for giving false testimony before the grand jury, witnesses are absolutely immune from civil liability for such testimony. Rehberg v. Paulk, 566 U.S. 356, 359 (2012).
For the foregoing reasons, it is recommended that the Court dismiss the Amended Complaint. The dismissal should be without prejudice to Plaintiff bringing a malicious prosecution claim in the event his criminal case at 08-cr-374 is subsequently terminated in his favor. Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (for malicious prosecution claims, "the statute of limitations begins to accrue when the termination of criminal proceedings becomes favorable; that is, when 'the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.' Heck, 512 U.S. at 489."). The Court should not provide Plaintiff with the opportunity to file another amended complaint because it would be futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (when a deficient complaint is dismissed, the court must permit a curative amendment unless it would be futile).
III. CONCLUSION
It is respectfully recommended that this Court dismiss Plaintiff's Amended Complaint without leave to amend. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Plaintiff is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Date: September 25, 2020