Ford v. Wilcox et al

Filing 6

ORDER of Dismissal. ORDERED that the complaint and the action are dismissed without prejudice. FURTHER ORDERED that the claims for monetary damages against improper parties are dismissed with prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied and any pending motions are denied as moot, by Judge Lewis T. Babcock on 2/15/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02743-BNB
KIILLIU FORD, also known as
KILLIU FORD,
Plaintiff,
v.
TODD WILCOX, individually and in his official capacity of the Federal Bureau of
Investigations,
COLEAN COVELL, individually and in her official capacity [as] United States
Assistant Attorney, and
SUNEETA HAZRA, individually and in her offical [sic] capacity [as] United States
Assistant Attorney,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Kiilliu Ford, also known as Killiu Ford, currently is incarcerated at the
Denver County Jail. On October 15, 2012, Mr. Ford, acting pro se, filed a Prisoner
Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), as well as various statutory authority, asking
for money damages and injunctive relief.
Mr. Ford has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,

490 U.S. 319, 324 (1989). In order to succeed in a Bivens action, Mr. Ford must
demonstrate that federal officials violated his rights under the United States Constitution
while acting under color of federal law. See Dry v. United States, 235 F.3d 1249, 1255
(10th Cir. 2000).
The Court must construe Mr. Ford’s filings liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as an
advocate for a pro se litigant. Hall, 935 F.2d at 1110. For the reasons stated below, the
complaint and the action will be dismissed.
Mr. Ford was convicted in this Court in United States v. Morgan, No. 11-cr00303-REB-2 (D. Colo. Nov. 5, 2012), on charges of kidnapping, conspiracy to kidnap,
and possession of a firearm during a crime of violence. "[T]he court is permitted to take
judicial notice of its own files and records, as well as facts which are a matter of public
record." Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir.2000),
abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.
2001).
On October 22, 2012, this Court sentenced Mr. Ford to 600 months of
imprisonment in the custody of the United States Bureau of Prisons and five years of
supervised release. ECF No. 261 in No. 11-cr-00303-REB-2. On October 29, 2012,
judgment was entered on the docket. ECF No. 263 in No. 11-cr-00303-REB-2. On
November 5, 2012, an amended judgment to correct a clerical mistake was entered on
the docket. ECF No. 265 in No. 11-cr-00303-REB-2. On November 5, 2012, Mr. Ford
appealed, through counsel, from the amended judgment to the United States Court of

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Appeals for the Tenth Circuit (Tenth Circuit). United States v. Ford, 12-1442 (10th Cir.
2012); see also ECF No. 266 in No. 11-cr-00303-REB-2. On December 4, 2012, the
Tenth Circuit appointed new counsel, effective nunc pro tunc to the date the notice of
appeal was filed. ECF No. 281 in No. 11-cr-00303-REB-2. That appeal currently is
pending before the Tenth Circuit.
While his direct appeal is pending, Mr. Ford initiated the instant action against a
special agent with the Federal Bureau of Investigations and two United States assistant
attorneys, alleging Fourteenth Amendment due process violations for their roles in
prosecuting him on criminal charges, resulting in his conviction in No. 11-cr-00303-REB.
Because Mr. Ford is challenging the basis for and validity of his criminal
conviction and sentence, the complaint must be dismissed as barred by the rule in Heck
v. Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for damages
necessarily would imply the invalidity of a criminal conviction or sentence, the action
does not arise until the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by an authorized state tribunal, or called
into question by the issuance of a federal habeas writ. See id. at 486-87. Further, the
United States Court of Appeals for the Tenth Circuit has held that Heck, which was
litigated pursuant to 42 U.S.C. § 1983, applies to Bivens actions. See Crow v. Penry,
102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam). Mr. Ford does not allege that he
has invalidated his conviction through a writ of habeas corpus, and as previously stated
has a direct appeal pending from his conviction and sentence.
Although Mr. Ford also seeks injunctive relief, Heck applies “when the concerns
underlying Heck exist,” which include “those claims that would necessarily imply the

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invalidity of [the] conviction.” See Lawson v. Engleman, 67 Fed. App’x 524, 526 n.2
(10th Cir. 2003) (unpublished) (citing Beck v. City of Muskogee Police Depot, 195 F.3d
553, 557 (10th Cir. 1999)). “[A] state prisoner’s § 1983 action is barred (absent prior
invalidation) – no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of
confinement or its duration”) (emphasis in original). See Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005).
Because of the nature of Mr. Ford’s allegations, his request for injunctive relief
necessarily implies the invalidity of his conviction. See Lawson, 67 Fed. App’x at 526
n.2 (citing Kutzner v. Montgomery Cnty., 303 F.3d 339, 341 (5th Cir. 2002) (noting that
claims seeking to attack the fact or duration of confinement “must be brought as habeas
corpus petitions and not under § 1983"). Success on Mr. Ford’s claims would
necessarily spell speedier release or demonstrate the invalidity of his confinement or its
duration. Therefore, his claims for injunctive relief cannot be pursued under Bivens.
Rather, they must be pursued as a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255, see Preiser v. Rodriguez, 411 U.S. 475, 504 (1973), after
resolution of his direct appeal. As stated earlier, Mr. Ford does not allege, and nothing
in the Court file indicates, he has invalidated his conviction through a writ of habeas
corpus.
Because Mr. Ford is challenging the basis for and validity of his federal criminal
conviction, the instant action will be dismissed pursuant to Heck. The dismissal will be
without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
However, a Heck dismissal counts as a strike under § 1915(g). See Hafed v. Federal
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Bureau of Prisons, 635 F.3d 1172, 1177-78 (10th Cir. 2011).
The Court also notes that Mr. Ford's complaint suffers from other deficiencies.
To the extent he is suing improper parties for damages, the claims will be dismissed
with prejudice. See Carbajal v. Holman, No. 12-1152, 2012 WL 4354689, *1 (10th Cir.
Sept. 25, 2012) (unpublished).
Mr. Ford is suing Defendants because of their involvement in his criminal
proceedings. He may not sue the individual prosecutors in this Bivens action.
Defendant United States assistant attorneys, Colean Covell and Suneeta Hazra, are
entitled to absolute immunity. This is because state and federal prosecutors are entitled
to absolute immunity in § 1983 and Bivens-type suits for activities within the scope of
their prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976); see
also Butz v. Economou, 438 U.S. 478, 504 (1978) Mr. Ford's allegations against these
Defendants involve no more than acts that are “‘intimately associated with the judicial
process’ such as initiating and pursuing a criminal prosecution.” Snell v. Tunnell, 920
F.2d 673, 686 (10th Cir. 1990) (quoting Imbler, 424 U.S. at 430), cert. denied sub nom.
Swepston v. Snell, 499 U.S. 976 (1991). Therefore, the claims against Defendants,
Covell and Hazra, are legally frivolous based on absolute immunity or seek relief against
Defendants immune from such relief.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Ford files a notice of appeal he also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
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Accordingly, it is
ORDERED that the complaint and the action are dismissed without prejudice as
barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). It is
FURTHER ORDERED that the claims for monetary damages against improper
parties are dismissed with prejudice because these claims either are legally frivolous or
are seeking relief from Defendants entitled to immunity. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

15th

day of

February , 2013.

BY THE COURT:

s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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