Opinion
Civil Action No. 00-0470-AH-M
December 14, 2000
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i)
I. Nature of Proceedings.
A. Complaint (Doc. 1).
Plaintiff filed a § 1983 complaint naming as Defendants Robert J. Albach, a detective with the Mobile County Sheriff's Department; James Crosby, a sergeant with the sheriff's department; Sidney Harrell, Jr., court-appointed defense counsel; and Therese Green, appellate counsel. Plaintiff's allegations center on his convictions of January 3, 1998, for child abuse and murder and on the events that led to his prosecution and convictions. In this action, Plaintiff seeks "relief from his conviction and time served without probation or any holds fines or costs to him so that the Plaintiff may return to his home in Mississippi" and $800 a day in punitive damages.
Plaintiff states that he was convicted "about 1/3/98" (Doc. 1, at 7).
The following is a description of Plaintiff's allegations.
Defendants Crosby and Albach harassed Plaintiff by calling him at his home, leaving notes on the door, and questioning him after they had a confession from Michelle Orso on May 17, 1995, in which she admitted that she murdered her son. Plaintiff was threatened by Defendant Albach with arrest if he did not answer their questions. Plaintiff was questioned for six hours and was told that he would not be arrested. Plaintiff alleges that Defendants Albach and Crosby falsely accused him of child abuse and murder, and that they trespassed.
Plaintiff contends that ten months after the confession, attorney Boller told Plaintiff and his mother that Plaintiff should turn himself in. They followed Boller to the jail. (Boller had been representing Plaintiff on a charge of attempt to possess a controlled substance, which was reduced to a misdemeanor.) The next day at the jail, Plaintiff asked the jail clerk if he was "wanted" and he was told that his name was not in the computer and that there was not a warrant for him. Plaintiff believes that he was set up or entrapped as it took an hour for a warrant to be prepared.
In the complaint (Doc. 1, at 7), Plaintiff states that he started serving his sentence on March 19, 1997, even though he was convicted on January 3, 1998. It appears to the Court that Plaintiff was held at the jail pending his trial.
Defendants Albach and Crosby searched Plaintiff's apartment, seizing a cloth and spoon as evidence. These items were not used in Plaintiff's trial because they were allegedly illegally seized due to Defendant Albach threatening Plaintiff that they would get a warrant to arrest Plaintiff if Plaintiff did not sign the Miranda card to search the apartment.
Defendant Harrell, Plaintiff's court-appointed defense counsel, Allegedly violated Plaintiff's rights when he refused to check on Plaintiff's account at Union Planters Bank. This caused Plaintiff to be defrauded of $8000 to $10,0000 that had been directly deposited by the Social Security Administration into his account. Plaintiff's monthly social security check of $850 was deposited in his account for the ten months that he was in the county jail. Plaintiff wants Defendant Harrell to pay him for the loss of his money and any interest that it would have gained as the bank will not return his money. Defendant Harrell further allegedly violated Plaintiff's constitutional rights when he failed to file for a change of venue, to investigate Plaintiff's defense, to call witnesses, to visit with Plaintiff, and to file for an evidentiary hearing and a pretrial hearing as a requested by Plaintiff.
Plaintiff previously sought to recover this money in Civil Action No. 00-0353-CB-M, in which he sued the bank, officers of the bank, and his mother. That action was dismissed as frivolous on August 31, 2000.
Defendant Therese Green, Plaintiff's appellate counsel, allegedly refused "to file" against Defendant Harrell for failing to call witnesses, to investigate, and to prepare a defense. Plaintiff claims that he was falsely accused and was arrested without probable cause and that he is innocent of child abuse and murder and therefore should be released. Plaintiff contends that Ms. Orso confessed to killing her son, John Danial Powell, Jr., and admitted this to a jury. Plaintiff maintains that two people could not have killed her son.
Attached to Plaintiff's "Motion Intering [sic] Evidence" (Doc. 12) is a transcript of Ms. Orso's statement admitting to hitting her son "Little Man." Plaintiff also refers to this child as "Little Man" in his amendment (Doc. 21).
Plaintiff believes that he was being used for political reasons because it was an election year and that Boller was used to get Plaintiff to turn himself in, which was in exchange for having Plaintiff's drug charge reduced. Plaintiff contends that a conspiracy led to his wrongful conviction and that political gain was the reason for his conviction.
A. Motion to Amend (Doc. 21).
In his amendment, Plaintiff claims that he could not be found guilty of both murder and child abuse because they are based on the same event and that finding him guilty of both is contrary to the court's jury instruction. Counsel is alleged to be deficient for allowing Plaintiff's multiple convictions to be unchallenged. Plaintiff complains that the Alabama Court of Criminal Appeals was deficient because it did not address the Fifth Amendment issue. Plaintiff asserts that his appellate counsel was deficient when she failed to file a motion for a new trial based on ineffective assistance of trial counsel due to his failure to object to the verdict and the sentence, and on a Fifth Amendment violation. Plaintiff contends that if these issues had been preserved by appellate counsel's filing a motion for a new trial, his conviction would have been reversed and a new trial would have been granted. Plaintiff claims that Ms. Orso's confession was suppressed by the prosecution, and that if his jury had heard it, he would have been cleared. Plaintiff avers that the jury deliberated without this confession and without the answer to the question that they asked a doctor about C. P. R. Plaintiff contends that he is innocent of murder and that he tried to save "Little Man" and called 911, but he was convicted on circumstantial evidence.
The Court notes that Plaintiff's amendment is not in the format of the complaint form and is, therefore, not easily read, and it has pleading deficiencies. Additionally, the amendment contains references to legal authorities and legal arguments. The complaint form instructs a plaintiff to present only the facts and to make no legal arguments (Doc. 1, at 2, E). Plaintiff's attachment to the original complaint is also not in the format of the complaint, but is in narrative style, and contains pleading deficiencies.
II. Standards of Review Under 28 U.S.C. § 1915 (e)(2)(B) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiff's complaint under 28 U.S.C. § 1915 (e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.
A prisoner who has not paid the full $150.00 filing fee at the time of filing will have his complaint screened under 28 U.S.C. § 1915 (e) (2)(B) before a defendant is served. If during this screening process, a complaint is found to be frivolous or malicious, fails to state a claim upon which relief can be granted, or sues persons who are immune from suit for damages, the complaint will be dismissed before service of process. Furthermore, a prisoner who pays the $150.00 filing fee at the time of filing will have his complaint screened under 28 U.S.C. § 1915A, which provides for the dismissal of a complaint against governmental officials on the same grounds contained in § 1915(e)(2)(B).
The predecessor to this section was 28 U.S.C. § 1915 (d).
III. Discussion.
Plaintiff's claims in this action that concern his convictions and claims that led to his prosecution and convictions are governed by the decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, a prisoner filed a § 1983 damages action against the prosecutors and investigator in his criminal case for their actions which resulted in his conviction. The Heck court analogized the plaintiff's claim to a common-law cause of action for malicious prosecution, which has as a required element that the accused prove the termination of the prior criminal proceeding in favor of the accused. 512 U.S. at 484, 114 S.Ct. at 2371. The Supreme Court recognized that the reasoning for this requirement is to avoid ""parallel litigation over the issues of probable cause and guilt, '" id. (citation omitted), to reinforce ""a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction, '" id. (citation omitted), and to prevent a convicted criminal defendant from collaterally attacking his criminal conviction through a civil suit,id. The Court observed:
We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it had always applied to actions for malicious prosecution (footnote omitted).
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, (footnote omitted), 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 (footnote omitted), in the absence of some other bar to the suit (footnote omitted).Id. at 486-87, 114 S.Ct. at 2372-73.
This decision thus requires a plaintiff in a § 1983 action who is attempting "to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, " to make a showing that his conviction, sentence, or other criminal judgment was reversed, expunged, declared invalid by an appropriate state tribunal, or called into question in a federal court's issuance of a writ of habeas corpus. Id. at 486-87, 114 S.Ct. at 2372. If a plaintiff fails to make this showing, then no cause of action under § 1983 exists. Id. at 489, 114 S.Ct. 2373. If, in a § 1983 action, a plaintiff contends that a favorable ruling on his claims would not invalidate his conviction, sentence, confinement, or other criminal judgment, the burden is on the plaintiff to prove this contention in order for his claims to proceed. Id. at 487, 114 S.Ct. at 2374.
In the present action, Plaintiff has not shown that his convictions or sentences have been reversed, expunged, declared invalid by an appropriate state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. See Doc. 1, at 7. In fact, Plaintiff requested this Court to stay ("continue") any action due to his Rule 32 petition pending in the Circuit Court of Mobile County, Alabama, which contains the same claims that are present in his § 1983 action (Docs. 10 11). Moreover, the Court's examination of case law only found one reported case concerning a conviction of Plaintiff, Kennedy v. State, 744 So.2d 956 (Ala.Crim.App. 1998), which is an affirmance without opinion. The Court, therefore, finds that Plaintiff has failed to establish that his convictions have been invalidated in a manner prescribed by Heck. Accordingly, Plaintiff's damages claims that would invalidate Plaintiff's convictions or sentences if the Court were to rule favorably upon them are precluded by the Heck decision because Plaintiff has failed to establish that his convictions or sentences have been invalidated in a manner prescribed by Heck. Plaintiff's claims that are precluded by Heck are his claims for ineffective assistance of trial and appellate counsel, improper questioning, harassment, and false accusations. As a result, Plaintiff's damages claims are due to be dismissed as frivolous.
Except for the claims of ineffective assistance of counsel, the Court is not determining whether each claim of Plaintiff is actually a claim or just part of a claim or is even an independent constitutional claim. Due to the manner in which these claims are presented, it appears at this time that these claims are barred by Heck. However, if they are not, then they would be barred by the two-year statute of limitations as discussed infra.
In addition to Plaintiff's request for damages, Plaintiff has requested relief from his convictions and his release. "[C]laims which challenge the validity of the claimant's conviction or sentence and seek release — are simply not cognizable under § 1983." Abella v.Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995). These claims are only recognized in habeas corpus and must be brought in a habeas corpus action under 28 U.S.C. § 2254. Id. Therefore, Plaintiff's claims that challenge his convictions and that seek his release are due to be dismissed as frivolous. See Id.
2. Statute of Limitations.
On the other hand, Plaintiff's claims that would not invalidate his convictions if the Court were to rule favorably on them are barred by the two-year statute of limitations for § 1983 actions brought in Alabama. The statute of limitations for a § 1983 action in Alabama is two years. Lufkin v. McCallum, 956 F.2d 1104, 1106, 1108 (11th Cir.), cert. denied, 506 U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992); Ala. Code § 6-2-38(1). The statute of limitations
""does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.'" Calhoun v. Alabama Alcoholic Beverage Control Board, 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir. 1975)). Thus Section 1983 actions do not accrue until the plaintiff knows or has reason to know that he has been injured. Calhoun, 705 F.2d at 424; Rubin [v. O'Koren], 621 F.2d [114, 116 [(5th Cir. 1980)]; Lavellee [v. Listi], 611 F.2d [1129,]1131[(5th Cir. 1980). Nor will a section 1983 action accrue until the plaintiff is aware or should have been aware who has inflicted the injury. Lavellee, 611 F.2d at 1131 (quoting United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
In the present action, Plaintiff had reason to know of his claims for trespassing, lost Social Security money, and illegal seizure, by the very latest, at the conclusion of his trial on January 3, 1998. Nonetheless, Plaintiff filed the present action on April 26, 2000, well beyond two years from when his claims accrued against Defendants. Therefore, any claims that are not precluded by Heck are barred by the two-year statute of limitations and are subject to dismissal as frivolous.
Plaintiff states that he was convicted on "about 1/3/98" (Doc. 1, at 7). The Court has not found a more specific date for Plaintiff's convictions in its case law search.
Moreover, Plaintiff states that the incident that gave rise to this action occurred "about June of 1997" (Doc. 1, at 4).
IV. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed without prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).