Cooper v. Carter et al (INMATE 2)

Filing 5

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by David Cooper, that: 1. Plaintiff's complaint against the named defendants be DISMISSED with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. 191 5(e)(2)(B); 2. Plaintiff's unlawful confinement claim be DISMISSED without prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(ii); 3. This complaint be DISMISSED prior to service of process. Objections to R&R due by 1/30/2007. Signed by Judge Terry F. Moorer on 1/18/2007. (dmn)

Cooper v. Carter et al (INMATE 2)

Doc. 5

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ D A V ID COOPER, #7743 P l a i n t if f , v. A N T H O N Y TODD CARTER, et al., D e fe n d a n t. _____________________________ * * * * * 2:07-CV-11-MEF (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Plaintiff, a county inmate, files this 42 U.S.C. § 1983 a c tio n against attorney Anthony Todd Carter, the Honorable Lucie McLemore, the District A tto rn e y for Montgomery County, Alabama, the Clerk of the Montgomery County District C o u rt, and Corporal M.D. Hall. Plaintiff files this action alleging that rights, privileges, or im m u n itie s afforded him under the Constitution or laws of the United States were abridged b y the conduct and actions of Defendants with regard to criminal charges currently pending a g a in s t him in the Circuit Court for Montgomery County, Alabama, and various proceedings re la te d to those pending charges. Plaintiff seeks damages from the named Defendants and re q u e sts that obstruction of justice and perjury charges be brought against them.1 Upon

re v ie w of the complaint, the court concludes that dismissal of this case prior to service of

1

Plaintiff is advised that a "private citizen lacks a judicially cognizable interest in the prosecution or

n o n - p r o s e c u t io n of another." Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973); see also Leeke v. T i m m e r m a n , 454 U.S. 83 (1981).

Dockets.Justia.com

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 2 of 10

p roc ess is proper under 28 U.S.C. § 1915(e)(2)(B).2 I . DISCUSSION A . Anthony Todd Carter, Esq. P lain tiff challenges the conduct and/or actions of Defendant Carter, the public d e f e n d e r appointed to represent Plaintiff on his pending criminal charges. An essential e le m e n t of a 42 U.S.C. § 1983 action is that the conduct complained of was committed by a person acting under color of state law. An attorney who represents a defendant in criminal p ro c e e d in g s does not act under color of state law. Polk County v. Dodson, 454 U.S. 312 (19 8 1 ) Mills v. Criminal District Court No. 3, 837 F.2d 677, 679 (5 th Cir. 1988) ("[P]rivate a tto rn e y s, even court-appointed attorneys, are not official state actors and . . . are not subject to suit under section 1983."); Parratt v. Taylor, 451 U.S. 527 (1981). Since the conduct a b o u t which Plaintiff complains was not committed by a person acting under color of state law , the claims asserted by him against legal counsel are frivolous as they lack an arguable b a s is in law. See Neitzke v. Williams, 490 U.S. 319, 327 (1989). Accordingly, Plaintiff's claim s against Defendant Carter are due to be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i).

2

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint

s c r e e n e d in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires t h e court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is f r iv o lo u s , 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).

2

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 3 of 10

B . The Honorable Lucie McLemore P lain tiff complains about adverse rulings and decisions made by Judge McLemore in re g a rd to his pending criminal charges. The conduct about which Plaintiff complains e m a n a te s from judicial actions taken by Judge McLemore in her capacity as a state judge. A s such, the claims entitle Plaintiff to no relief. It is clear that all of the allegations made by Plaintiff against Judge McLemore em an ate from actions taken by this defendant in her judicial capacity during state court p ro c e ed in g s over which she had jurisdiction. The law is well established that a state judge is absolutely immune from civil liability for acts taken pursuant to his judicial authority. F o rr e ste r v. White, 484 U. S. 219, 227-229 (1988); Paisey v. Vitale in and for Broward C o u n ty , 807 F.2d 889 (11th Cir. 1986); Stump v. Sparkman, 435 U.S. 349 (1978). A c c o rd in g ly , Plaintiff's claims for monetary damages against Judge McLemore are "based o n an indisputably meritless legal theory" and are, therefore, due to be dismissed upon a p p lic a tio n of 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). See Neitzke, 490 U.S. at 327. T o the extent Plaintiff seeks injunctive relief for actions taken by Judge McLemore, th is court lacks jurisdiction to render such judgment. A federal court has no jurisdiction or rig h t to grant relief under 42 U.S.C. § 1983 with respect to challenges to state court decisions in particular cases arising out of state court proceedings even if those challenges allege that th e court's action was unconstitutional. District of Columbia Court of Appeals v. Feldman, 4 6 0 U.S. 462, 486 (1983); Datz v. Kilgore, 51 F.3d 252 (11 th Cir. 1995); cf. Berman v. F lo r id a Board of Bar Examiners, 794 F.2d 1529 (11 th Cir. 1986). An action filed pursuant 3

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 4 of 10

to 42 U.S.C. § 1983 may not be used as a substitute to appeal a decision of a state circuit c o u rt. Datz, 51 F.3d at 254 (finding that a § 1983 suit arising from alleged erroneous d ec isio n s of a state court is merely a prohibited appeal of the state court judgment); Rolleston v . Eldridge, 848 F.2d 163 (11 th Cir. 1988). Likewise, a 42 U.S.C. § 1983 action may not be u s e d to compel a state court to take a particular course of action because this court has no a u th o rity to issue a writ directing state courts or their judicial officers in the performance of th e ir duties. Lamar v. 118 Judicial Dist. Court of Texas, 440 F.2d 383, 384 (5 th Cir. 1971); H a g g a r d v. State of Tennessee, 421 F.2d 1384, 1386 (6 th Cir.1970); Gurley v. Superior C o u rt of Mecklenburg County, 411 F.2d 586, 587 (4 th Cir. 1969). C . The False Charges/Perjury Claim

Plaintiff appears to complain that law enforcement officials fabricated criminal charges against him and/or lacked probable cause to arrest him, and committed perjury during his state court criminal proceedings. These claims provides no basis for relief. The law is well settled that 42 U.S.C. § 1983 does not authorize the assertion of a claim against a police officer or other individual for committing perjury during state court proceedings. Briscoe v. LaHue, 460 U.S. 325 (1983). "[I]n litigation brought under 42 U.S.C. § 1983 . . ., all witnesses - police officers as well as lay witnesses - are absolutely immune from civil liability based on their testimony in judicial proceedings. [Briscoe v. LaHue,] 663 F.2d 713 ([7th Cir.] 1981)." Id. at 328. The Court further implied that the false testimony of a police officer in and of itself does not violate an accused's constitutional

4

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 5 of 10

rights. Id. at 327, n. 1. Thus, Plaintiff's perjury claim is without legal basis and, as such, is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(i). Neitzke, 490 U.S. at 327. To the extent Plaintiff alleges that law enforcement officials lacked probable cause to arrest him, he is entitled to no relief. The exhibits submitted in support of the complaint reflect that law enforcement officials arrested Plaintiff pursuant to a warrant issued by the District Court of Montgomery County. The state court issued the warrant due to Plaintiff's violation of the community notification act for adult criminal sexual offenders. (Doc. No. 1, Exhs. A-8, B-1, O.) It is, therefore, clear that probable cause existed for issuance of the warrant. Consequently, "because [Plaintiff's] arrest was based upon a warrant supported by probable cause, his arrest was not unconstitutional. . ." United States v. Jones, 377 F.3d 1313, 1314 (11th Cir. 2004). D. The False Imprisonment Claim To the extent Plaintiff's complaint may be construed as containing an allegation that he is falsely imprisoned on criminal charges pending before the Circuit Court of Montgomery County because he is innocent of the charges lodged against him, such claim may not proceed in this § 1983 action. It appears from a review of the instant complaint that the criminal charges about which Plaintiff complains are presently pending before the state courts of Montgomery County. Under the decision of the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 43-44 (1971), a federal court must refrain from interfering with pending state criminal proceedings "when the moving party has an adequate

5

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 6 of 10

remedy at law and will not suffer irreparable injury if denied injunctive relief." The Younger abstention doctrine is premised upon a fundamental "public policy against federal interference with state criminal prosecutions." Id. at 43. In this case, Plaintiff has an adequate remedy at law because he may pursue all of his federal constitutional issues through the state court system. See generally Doby v. Strength, 758 F.2d 1405 (11th Cir. 1985). Plaintiff can vindicate his constitutional rights in the on-going state court

proceedings. Moreover, Plaintiff has not alleged the existence of any special circumstances which create a threat of irreparable harm. The mere fact that he must endure state criminal prosecution fails to demonstrate irreparable harm. Younger, 401 U.S. at 45. This court must, therefore, abstain from considering the merits of Plaintiff's challenge to his confinement.3 See also Uboh v. Reno, 141 F.3d 1000, 1006 (11 th Cir.1998) (a civil
p ro c e ed in g challenging the grounds on which the prosecution of the defendant had been c o m m e n c ed would indirectly implicate the question of the defendant's guilt; this "type of p a ra lle l inquiry by way of a civil suit prior to the resolution of a criminal action based on the sa m e type of events is precisely the quandary that Heck [v. Humphrey, 512 U.S. 477 (1994)] p r o h i b i ts . " ) .

In light of the foregoing, dismissal of Plaintiff's false imprisonment claim is

appropriate under 28 U.S.C. § 1915(e)(2)(B)(ii) as this claim is not cognizable in a 42
3

The court notes Plaintiff's complaint that he remained imprisoned falsely when his preliminary

h e a r in g was delayed. There is no federal requirement that States afford preliminary hearings to persons a c c u s e d of state criminal offenses. Furthermore, if the omissions about which Plaintiff complains were found to violate his federal rights, it is clear that his claims concern criminal charges which are currently pending b e f o r e the state courts of Montgomery County, Alabama, and, thus, as noted, are not currently appropriate f o r consideration by this court.

6

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 7 of 10

U.S.C. § 1983 action at this time. E. The Montgomery County District Attorney
P la in tiff files suit against the District Attorney for Montgomery County, Alabama. T h e court understands Plaintiff to challenge the actions of this defendant with regard to m a tters related to the criminal charges pending against him. "A prosecutor is entitled to a b so lu te immunity for all actions he takes while performing his function as an advocate for th e government." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). The prosecutorial fu n c tio n includes the initiation and pursuit of criminal prosecution, Imbler v. Pachtman, 424 U .S . 409, 424 (1976), and all appearances before the court, including examining witnesses a n d presenting evidence. See Burns v. Reed, 500 U.S. 478, 492 (1991)." Rowe v. Fort L a u d e rd a le , 279 F.3d 1271, 1279 (11 th Cir. 2002); see also Mastroianni v. Bowers, 60 F.3d 6 7 1 , 676 (11 th Cir. 1998). [A ]b s o lu te immunity is an entitlement to be free from suit for money d a m a g e s .... [T]he purpose of the immunity is to shield officials from the d is tra c tio n s of litigation arising from the performance of their official fu n c tio n s . To fulfill its purpose, official immunity protects government o ffic ia ls not only from having to stand trial, but also from having to bear the o th e r burdens attendant to litigation, including pretrial discovery.... In Imbler v . Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme C o u rt held that a prosecutor is absolutely immune from civil suit for damages u n d e r section 1983 for actions taken "in initiating a prosecution and in p r e s e n tin g the State's case." Id. at 431, 96 S.Ct. at 995. M a r x v. Gumbinner, 855 F.2d. 783, 788-89 (11 th Cir. 1988). P la in tiff's challenge to the conduct and/or actions of the District Attorney arise from th is defendant's role "as an `advocate' for the state" and such actions are "intimately

7

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 8 of 10

a ss o c ia te d with the judicial phase of the criminal process." Mastroianni, 60 F.3d at 676. (c ita tio n s omitted). Plaintiff's claims against this defendant are, therefore, due to be d is m is s e d as she is "entitled to absolute immunity for that conduct." Id.

F. The Clerk of the Montgomery County District Court
P lain tiff names the Clerk of the Montgomery County District Court as a defendant. F r o m the complaint and attachments thereto, the undersigned discerns no specific allegation a g a in s t this defendant. Nonetheless, the law is settled that the absolute immunity of the judge e x te n d s to the clerk when a court clerk acts "under command of court decrees or under e x p lic it instructions of a judge" Williams v. Wood, 612 F.2d 982, 985 (5 th Cir. 1980). A d d itio n a lly , where a court clerk acts pursuant to authority granted by state law and acts on b e h a lf of a court, the clerk is absolutely immune from damages liability when sued under 42 U .S .C . § 1983 because she is performing a judicial function. See Scott v. Dixon, 720 F.2d 1 5 4 2 (11 th Cir. 1983). Additionally, the mere fact that an individual holds a titular position su c h as the Clerk of Court for the Montgomery County District Court is insufficient to estab lish liability, as the doctrine of respondeat superior (supervisory liability) does not a p p ly to actions filed under 42 U.S.C. § 1983. Supervisors cannot be held liable for the e rro rs of their subordinates or on the basis of vicarious liability. Belcher v. City of Foley, 30 F .3 d 1390, 1396 (11 th Cir. 1994); Brown v. Crawford, 906 F.2d 667, 671 (11 th Cir. 1990); Z a tle r v. Wainwright, 802 F.2d 397, 401 (11 th Cir. 1986). In light of the foregoing, the court co n clud es that Plaintiff's claims against the Clerk of the Montgomery County District Court a re subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). See Neitzke, 490 U.S. at 327. 8

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 9 of 10

II. CONCLUSION A c c o rd in g ly , it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's complaint against the named defendants be DISMISSED with prejudice p rio r to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B); 2 . Plaintiff's unlawful confinement claim be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); 3 . This complaint be DISMISSED prior to service of process. It is further ORDERED that the parties are DIRECTED to file any objections to the sa id Recommendation on or before January 30, 2007. Any objections filed must specifically id e n tif 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 fin 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 9

Case 2:07-cv-00011-MEF-TFM

Document 5

Filed 01/18/2007

Page 10 of 10

S e p te m b e r 30, 1981. D o n e , this 18 th day of January 2007.

/s /T e rry F. Moorer T E R R Y F. MOORER UNITED STATES MAGISTRATE JUDGE

10