Smith v. Miller et al

Filing 4

RECOMMENDED DISPOSITION recommending that 1 this case be dismissed, with prejudice because Defendants are entitled to immunity; dismissal count as a "strike," because Plaintiff Smith has failed to state a claim upon which relief may be granted; and the Court certify that an in forma pauperis appeal from any Order adopting this Recommended Disposition would not be taken in good faith. Objections due within 14 days of the entry of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 4/2/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ROY LEE SMITH
V.

PLAINTIFF
NO. 4:17-CV-00592-SWW-JTR

BRIAN S. MILLER, United
States District Judge; PATRICIA
HARRIS, United States Magistrate Judge

DEFENDANTS

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Susan Webber Wright. You may file written
objections to all or part of this Recommendation. If you do so, those objections must:
(1) specifically explain the factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days of the entry of this
Recommendation. The failure to timely file objections may result in waiver of the
right to appeal questions of fact.
I. Introduction
Plaintiff, Roy Lee Smith (“Smith”), is a prisoner in the Arkansas Department
of Correction. He has filed this pro se Petition for Declaratory relief requesting a
declaration that United States District Judge Brian S. Miller and United States
Magistrate Judge Patricia Harris violated his rights to due process by denying him
federal habeas relief in Smith v. Kelley, Eastern District of Arkansas Case No. 5:15-

CV-00234 (“Smith v. Kelley”).1 Doc. 1. More specifically, Smith alleges that
Defendants erred in applying Stone v. Powell2 “to systematically refuse to consider”
his Fourth Amendment claim on federal habeas review, and he requests that this
Court declare that the rejection of his first federal habeas claim was unlawful.3
Pursuant to the screening function mandated by 28 U.S.C. § 1915A, the Court
recommends that the case be dismissed, with prejudice.4

1

A review of the district court docket in Smith v. Kelley reveals that Smith fully litigated
his 28 U.S.C. § 2254 habeas action. On March 25, 2016, Judge Miller entered an Order adopting
the Recommended Disposition of Magistrate Judge Harris and a Judgment dismissing Smith’s §
2254 Petition with prejudice. Smith v. Kelley, Docs. 28 & 29. Smith appealed. On October 19,
2016, the Eighth Circuit Court of Appeals denied Smith’s application for a certificate of
appealability. Id., Doc. 41. Smith filed a petition for writ of certiorari in the United States
Supreme Court, which was denied. Id., Doc. 45.
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428 U.S. 465, 96 S.Ct. 3037 (1976).

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On its face, Smith’s claim for declaratory relief is frivolous and without merit. If Smith
had alleged a non-frivolous claim against Chief Judge Miller and Judge Harris, the Court would
have been required to give serious consideration to recusal from this action to avoid any
appearance of impropriety. See 28 U.S.C. § 455(a) (a federal judge “shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned”). However, “[t]he trial
judge has a duty not to recuse himself or herself if there is no objective basis for recusal.” In re
United States, 441 F.3d 44, 67 (1st Cir.2006) (citations omitted).
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The Prison Litigation Reform Act requires federal courts to screen prisoner complaints
seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are
legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c)
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When making this determination, a court must accept the truth of the factual allegations contained
in the complaint, and it may consider the documents attached to the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).

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II. Discussion
A. Absolute Immunity
First, judges are entitled to absolute immunity from lawsuits arising from their
judicial functions. Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman,
435 U.S. 349, 356 (1978). Smith’s claims against Defendants arise from their
judicial functions. Thus, those claims must be dismissed, with prejudice, because
Defendants are entitled to absolute immunity. However, a dismissal based on
absolute immunity is not a strike, as defined by 28 U.S.C. § 1915(g). CastilloAlvarez v. Krukow, 768 F.3d 1219, 1220 (8th Cir. 2014).
B. Failure to State a Claim
Second, this case must also be dismissed because Smith has failed to state a
claim upon which relief may be granted. Rather than seeking permission to attack
his state conviction directly, through a successive habeas, Smith invokes the
Declaratory Judgment Act, 28 U.S.C. § 2201, (“DJA”), and seeks to accomplish
indirectly what he is prohibited from doing directly – having another federal district
court take another look at the merits of the § 2254 claim he raised and lost in Smith
v. Kelley. 5

5

If Smith’s request for declaratory relief were construed as a successive petition for writ
of habeas corpus under 28 U.S.C. § 2254, this Court would lack jurisdiction to consider it absent
authority to do so from the appropriate court of appeals. See 28 U.S.C. § 2244(b). There is no
indication that Smith has sought, or been granted, permission from the Eighth Circuit Court of
Appeals to file a successive habeas petition.

3

Under well-established law, Smith has failed to state a cognizable DJA claim.
Gajewski v. United States, 368 F.2d 533, 534 (8th Cir. 1966) (“we are unaware of
any authority which would permit the federal declaratory judgment statute, 28
U.S.C.A § 2201 ... to be used as a post-conviction remedy”), cert. denied, 386 U.S.
913 (1967); Waldon v. State of Iowa, 323 F.2d 852, 853 (8th Cir. 1963) (providing
a “state prisoner is not entitled to seek a declaratory determination from the federal
courts under 28 U.S.C.A. § 2201 as to the validity of the judgment on which he is
confined” in order to circumvent the exhaustion requirement of § 2254); Sumpter v.
Johnson, No. 4:01–CV–157–E, 2001 WL 406229, at *1 (N.D. Tex. Apr.18, 2001)
(finding declaratory judgment act cannot be used as a substitute for habeas corpus).
III.

Conclusion

IT IS THEREFORE RECOMMENDED THAT:
1.

This case be DISMISSED, WITH PREJUDICE, because Defendants

are entitled to absolute immunity.
2.

Dismissal count as a “STRIKE,” as defined by 28 U.S.C. § 1915(g)

because Plaintiff Smith has also failed to state a claim upon which relief may be
granted.
3.

The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in

forma pauperis appeal from any Order adopting this Recommended Disposition
would not be taken in good faith.
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DATED this 2nd day of April, 2018.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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