Thomas v. Circuit Court of Houston County et al (INMATE 2)

Filing 4

REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) The 1983 claims presented against Judge Butch Binford, Shaun McGhee, and the Circuit Court of Houston County be DISMISSED with prejudice in accordance with the directives of 28 USC 1915(e)(2) (B)(i) and/or (iii); 2) Plf's challenge to the constitutionality of the conviction and/or sentence imposed upon him by the Circuit Court for Houston County, AL, be DISMISSED without prejudice pursuant to the provisions of 28 USC 1915(e)(2)(B)(ii) as such claims are not properly before the court at this time; and 3) This complaint be DISMISSED prior to service of process; Objections to R&R due by 6/10/2009. Signed by Honorable Terry F. Moorer on 5/28/2009.(wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION ____________________________ J O H N N Y W. THOMAS P l a in tif f , v. * * * 1:09-CV-454-TMH (WO)

C IR C U IT COURT OF HOUSTON COUNTY, * e t al., * D e f e n d a n ts . ____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate incarcerated at the Houston County Jail located in Dothan, A lab a m a , filed this 42 U.S.C. § 1983 action on May 19, 2009. He complains that his co n stitutio n al rights were violated during his criminal court proceedings in the Circuit Court f o r Houston County, Alabama. Named as defendants are the Honorable Butch Binford, S h a u n McGhee, Esq., and the Circuit Court for Houston County, Alabama. Plaintiff requests th a t the trial court be directed to reconsider alternatives to incarceration and re-sentence him a c c o r d i n g ly. Upon review of the complaint, the court concludes that dismissal of this case p rio r to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1

1 A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

I. DISCUSSION P lain tiff states in his complaint that he appeared in court on April 22, 2009 for a p ro b a tio n hearing. Despite being pre-accepted into a drug treatment center pending an e v a lu a tio n and court hearing, Plaintiff asserts that his attorney never presented this in f o rm a tio n to the court at the hearing. Plaintiff further contends that Judge Binford made th e decision to incarcerate him based solely on the district attorney's "confession." Plaintiff a sk s that the trial court re-sentence him and consider alternatives to incarceration. S p e c i f i c a lly, Plaintiff requests that he be sentenced to a drug treatment center and then be g iv e n a period of supervised probation. (Doc. No. 1.) A. Judge Butch Binford To the extent Plaintiff seeks declaratory relief from adverse decisions issued by Judge B in f o rd in the state criminal proceedings over which this Defendant presided, this court lacks j u r i s d ic tio n to render such judgment in an action filed pursuant to 42 U.S.C. § 1983. "The R o o k e r-F e ld m a n doctrine prevents . . . lower federal courts from exercising jurisdiction over c a se s brought by `state-court losers' challenging `state-court judgments rendered before the d istrict court proceedings commenced.' Exxon Mobil Corp. V. Saudi Basic Industries Corp., 5 4 4 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)." Lance v. Dennis, 546 U.S. 4 5 9 , 460, 126 S.Ct. 1198, 1199 (2006). Although "Rooker-Feldman is a narrow doctrine," it remains applicable to bar Plaintiff from proceeding before this court as this case is " b ro u g h t by [a] state-court loser[] complaining of injuries caused by state-court judgments

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re n d e re d before the district court proceedings commenced and inviting district court review a n d rejection of those judgments. 544 U.S. at 284, 125 S.Ct. [at] 1517." Lance, 546 U.S. a t 464, 126 S.Ct. at 1201; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 4 8 6 (1983) (federal district courts "do not have jurisdiction . . . over challenges to state court d e c is io n s in particular cases arising out of judicial proceedings even if those challenges a lleg e that the state court's action was unconstitutional."). Moreover, a § 1983 action is in a p p ro p ria te either to compel or to appeal a particular course of action by a state court. Datz v . Kilgore, 51 F.3d 252, 254 (11 th Cir. 1995) (§ 1983 suit arising from alleged erroneous d e c isio n s of a state court is merely a prohibited appeal of the state court judgment); see also R o lle sto n v. Eldridge, 848 F.2d 163 (11 th Cir. 1988). In light of the foregoing, the court concludes that dismissal of Plaintiff's request for d e c la ra to ry relief with respect to actions undertaken by Judge Binford during matters related to Plaintiff's criminal proceedings is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i). See C la rk v. State of Georgia Pardons and Paroles Board, 915 F.2d 636 (11 th Cir. 1990); see a ls o Neitzke v. Williams, 490 U.S. 319 (1989). B . Attorney Shaun McGhee P la in tif f complains that trial counsel, Shaun McGhee, provided ineffective assistance o f counsel during his criminal court proceedings. An essential element of a 42 U.S.C. § 1 9 8 3 action is that a person acting under color of state law committed the constitutional v io la tio n about which the plaintiff complains. American Manufacturers Mutual Ins. Co. v.

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S u lliv a n , 526 U.S. 40 (1999); Parratt v. Taylor, 451 U.S. 527 (1981); Willis v. University H e a lth Services, Inc., 993 F.2d 837, 840 (11 th Cir. 1993). To state a viable claim for relief u n d e r § 1983, a plaintiff must assert "both an alleged constitutional deprivation ... and that `th e party charged with the deprivation [is] a person who may fairly be said to be a state a c to r.'" American Manufacturers, 526 U.S. at 50 (emphasis in original). An attorney who re p re s e n ts a defendant in criminal proceedings does not act under color of state law. Polk C o u n ty v. Dodson, 454 U.S. 312 (1981); Mills v. Criminal District Court No. 3, 837 F.2d 6 7 7 , 679 (5 th Cir. 1988) ("[P]rivate attorneys, even court-appointed attorneys, are not official s ta te actors and ... are not subject to suit under section 1983."). Since the conduct about w h ic h Plaintiff complains was not committed by a person acting under color of state law, the § 1983 claims asserted against Defendant McGhee are frivolous because they lack an a rg u a b le basis in law. Neitzke, 490 U.S. at 327. Such claims are, therefore, due to be d is m is s e d under 28 U.S.C. § 1915(e)(2)(B)(i). C. The Circuit Court for Houston County

Plaintiff names the Circuit Court for Houston County as a defendant. The law is established that courts are not persons within the meaning of 42 U.S.C. § 1983. See Moity v. Louisiana State Bar Association, 414 F. Supp. 180, 182 (E.D. La. 1976), aff'd, 537 F.2d 1141 (5th Cir. 1976). Dismissal of Plaintiff's complaint against the Circuit Court for Houston County is, therefore, appropriate under 28 U.S.C. § 1915(e)(2)(B)(i).
D. The Challenge to Plaintiff's Conviction

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T o the extent Plaintiff seeks to challenge the fundamental legality of his confinement, s u c h claims provide no basis for relief at this time. Edwards v. Balisok, 520 U.S. 641, 646 (1 9 9 7 ); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500 (1 9 7 3 ). In Heck, the Supreme Court held that claims for damages arising from challenges to th e legality of a prisoner's confinement are not cognizable in a 42 U.S.C. § 1983 action " u n le ss and until the conviction or sentence is reversed, expunged, invalidated, or impugned b y the grant of a writ of habeas corpus" and complaints containing such claims must th e re f o re be dismissed. 512 U.S. at 483-489. The Court emphasized that "habeas corpus is th e exclusive remedy for a sate prisoner who challenges the fact or duration of his c o n f in e m e n t and seeks immediate or speedier release, even though such a claim may come w ith in the literal terms of § 1983" and, based on the foregoing, concluded that Heck's c o m p la in t was due to be dismissed as no cause of action existed under section 1983. Id. at 481. In Balisok, the Court further determined that a prisoner's "claim for [both] declaratory re lie f and money damages" based on an alleged denial of due process that necessarily implies th e invalidity of the action taken against the prisoner "is not cognizable under § 1983" unless su ch action has previously been overturned. 520 U.S. at 648. Moreover, the Court

d e te rm in e d that this is true not only when a prisoner challenges the judgment as a substantive m a tte r but also when "the nature of the challenge to the procedures could be such as n e c es s a rily to imply the invalidity of the judgment." Id. at 645. The Court "remphasize[d]

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. . . that a claim either is cognizable under § 1983 and should immediately go forward, or is n o t cognizable and should be dismissed." Id. at 649. Plaintiff's claims represent a challenge to the constitutionality of his incarceration s te m m in g from his 2009 criminal proceedings. A judgment in favor of Plaintiff in this cause o f action would necessarily imply the invalidity of his conviction and/or sentence. It is clear f ro m the complaint that the conviction and/or sentence about which Plaintiff complains has n o t been invalidated in an appropriate proceeding. Consequently, the instant collateral attack o n the conviction and/or sentence is prohibited as habeas corpus is the exclusive remedy for a state prisoner who challenges the validity of the fact or duration of his confinement. B a lis o k , 520 U.S. at 645; Heck, 512 U.S. at 481; Preiser, 411 U.S. at 488-490. Such attack is , therefore, subject to summary dismissal by this court in accordance with the provisions o f 28 U.S.C. § 1915(e)(2)(B)(ii). II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The § 1983 claims presented against Judge Butch Binford, Shaun McGhee, and the C irc u it Court for Houston County be DISMISSED with prejudice in accordance with the d irec tiv es of 28 U.S.C. § 1915(e)(2)(B)(i) and/or (iii); 2 . Plaintiff's challenge to the constitutionality of the conviction and/or sentence im p o s e d upon him by the Circuit Court for Houston County, Alabama, be DISMISSED w ith o u t prejudice pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) as such claims a re not properly before the court at this time; and 6

3 . This complaint be DISMISSED prior to service of process. It is further O R D E R E D that the parties are DIRECTED to file any objections to the R e c o m m e n d a tio n on or before June 10, 2009. Any objections filed must specifically

id e n t i f y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981.

Done, this 28th day of May 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 7