Lee v. Howard et al

Filing 3

ORDER AND OPINION granting for the purpose of dismissal only 2 Affidavit and Authorization for withdrawal from Inmate Account filed by Kevin Mario Lee; Dismissing With Prejudice claims challenging the constitutionality of pending state criminal case and state convictions, the remaining claims are Dismissed pursuant to 28 USC 1915A. Signed by Judge Thomas W. Thrash, Jr on 2/4/09. (dr)

FILE-0 IN CHAMBEF TFIO,'AAQ' W. THRASH X

F. J
JAMES N . HATTEIV , Cler

IN THE UNITED STATES DISTRICT COURT ByFOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KEVIN MARIO LEE, INMATE NO . 0826596, Plaintiff,
V.

Deputy

PRISONER CIVIL RIGHTS 42 U.S .C . § 1983 CIVIL ACTION NO . 1 :09-CV-0095-TWT

PAUL HOWARD ; R.E. JOHNSON ; and KEVIN STEVEN SCHLJNIAKER, Defendants .

ORD E R AND OPIN ION Plaintiff has submitted the instant fro se civil rights complaint . The matter is presently before this Court for a 28 U .S .C . § 1915A frivolity determination . I. The Standard of Review
Pursuant to 28 U .S .C . § 1915A(a), a federal court is required to screen "as

soon as practicable" a prisoner complaint "which seeks redress from a governmental entity or officer or employee of a governmental entity ." Section
1915A(b) requiress a federal court to dismiss a prisoner complaint that is either : (1) "frivolous, malicious, or fails to state a claim upon which relief may be

granted" ; or (2) "seeks monetary relief from a defendant who is immune from such relief."

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In order to state a claim for relief under 42 U .S .C . § 1983, a plaintiff must

satisfy two elements . First, a plaintiff must allege that an act or omission deprived him "of some right, privilege, or immunity secured by the Constitution or laws of the United States." Hale v. Tallapoosa County, 50 F .3d 1579, 1582 ( 11th Cir. 1995) . Second, a plaintiff must allege that the act or omission was committed by "a person acting under color of state law." Id. If a litigant cannot satisfy these
requirements, or fails to provide factual allegations in support of the claim, then the complaint is subject to dismissal, pursuant to 28 U.S.C. § 1915A . See Bell

Atlantic Cord . v. Twombly, 550 U .S . 544, , 127 S. Ct. 1955, 1974 (2007) (more than merely "conceivable," the "complaint must be dismissed" when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face") ;
Papasan v. Allain, 478 U .S . 265, 286 (1986) (the court accepts as true the plaintiff's factual contentions, not his or her legal conclusions that are couched as

factual allegations) .
II . Di scussion

A.

P lainti ff's Allegations

Plaintiff, currently held at the Fulton County Jail, states that on January 19,
2007, he was arrested, pursuant to indictment no . 07SC55564, along with two co-

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defendants, Derrick White and Marco Thomas . (Doc . 1 at ¶ IV) . Plaintiff states
that Thomas was represented by Defendant Kevin Schumaker . (Id .) . On February 6, 2007, Plaintiff was released on bond . On April 13, 2007, during a court

hearing, Plaintiffwas informed by his counsel, Kazuma Sonoda, that, after he filed
a speedy trial motion, his representation of Plaintiff would end . (Id. ) . On July 13, 2007, Plaintiff and co-defendant Larry James Brown, also

represented by Defendant Schumaker, were arrested by Defendant R .E . Johnson,
an Atlanta police officer . (Id .) . Plaintiff alleges that Johnson relied on a vague

description of a suspect wearing a black t-shirt and dark jeans to effectuate the arrest . (Id.) . Plaintiff further alleges that Johnson's sworn statement is vague and lacks "particular allegations as to the means by which Plaintiff personally
committed any offense ." (Id.) . By these acts, Plaintiff contends that Johnson

violated the Due Process Clause of the Fifth Amendment . (Id .) . On July 20, 2007, Defendant Paul Howard, Fulton County District Attorney, obtained a second indictment, indictment no. 075058528, against Plaintiff. (Id .) . Plaintiff alleges that Howard relied "on vague and very frivolous information lacking any facts in support of the actual accusations ." (Id.). Howard's actions, according to Plaintiff, violated his due process rights . (Id .) . 3
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Plaintiff states that during his jury trial of the charges found in indictment number 07SC55564, held June 10-12, 2008, he was represented by Defendant Schumaker, who was still representing two of Plaintiffs co-defendants . (Id .) . At the conclusion of the trial, Plaintiff was found guilty . Plaintiff alleges that his
rights under the Fifth, Sixth, Eighth and Fourteenth Amendments were violated,

as a result of Schumaker's alleged conflict of interest . (Id.). As relief, Plaintiff seeks dismissal of the sentence he received under indictment no . 07SC55564 and the charges contained in indictment no .
07SC58528 . (Doc . 1 at ¶ V). Plaintiff also seeks money damages against the

named Defendants . B . Analysis of Plaintiff's Claims I . Dismissal of Char es and Sentence Plaintiff seeks to have his sentence, and presumably the underlying conviction(s), dismissed under one indictment and to have the charges dismissed in another indictment . Although not clear, the charges in the latter indictment are
apparently still pending .

"Challenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus ." Muhammad v . Close, 540 U .S . 749, 4
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750 (2004) (per curiam) . "[R]equests for relief turning on circumstances of confinement may be presented in a § 1983 action ." Id. at 750 . Importantly,

release from custody is not an available remedy in a civil rights action . Preiser v .
Rodriguez, 411 U.S . 475,479 (1973) . Accordingly, Plaintiffmay not seekto have

his pending charges and current sentence dismissed via a civil rights complaint . However, this portion of this civil action is not one which needs to be restyled as a federal habeas corpus petition. First, with regard to Plaintiffs apparently pending state criminal case, it is well-established "that except in extraordinary circumstances a federal court must abstain from deciding issues
implicated in an ongoing criminal proceeding in state court ." Thompson v .

Wainwright, 714 F .2d 1495, 1503 (11th Cir. 1983) (citing Younger v . Harris, 401 U .S . 37 (1971)) . Extraordinary circumstances may justify intervention by a federal court, if
a petitioner alleges a great, immediate and irreparable injury or a flagrant violation

of an express constitutional prohibition. Young, 401 U .S . at 46-49 . Here, Plaintiff's assertion of being denied certain constitutional rights does not state an exception to the Younger abstention doctrine . See New Orleans Public Service, Inc . v. Council of City of New Orleans, 491 U.S . 350, 365 (1989) (relying on 5
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Younger to state that "the mere assertion of a substantial constitutional challenge to state action will not alone compel the exercise of federal jurisdiction") . Thus, this Court should refrain from interfering in Plaintiff's pending state criminal case . Plaintiff states that he was convicted under one of the indictments . The database for the Georgia Court of Appeals does not show that Plaintiff sought
direct review of his conviction(s) in that court . (www.gaappeals .us) . Even if

Plaintiff has appealed this conviction(s), he is required to exhaust his state court remedies before challenging the constitutionality of his conviction(s) in federal court . See 28 U.S .C . § 2254(b)(1) ; 28 U.S. C . § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, . . . if he has the right under the law of the State to raise, by any available procedure,
the question presented.") ; O'Sullivan v . Boerckel, 526 U .S . 838, 845 (1999) ;

Duncan v . Henry, 513 U.S . 364, 366 (1995) (a state petitioner who claims a trial court decision violated federal law "must say so, not only in federal court, but in ,~ e _ state court") ; Footman v . __Sinetarv, 978 F .2d 1207, 1211 (1 lth Cir . 1992) ("a habeas petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated previously") . As Plaintiff has either not pursued review of his claims in the Georgia Court of Appeals, or has 6
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not had that review completed, this Court should not review the merits of his allegations related to the indictment under which he was convicted at trial . In summary, Plaintiff's attempt to have his charges, conviction(s) and sentence dismissed is premature, pursuant to Younger and the statutory exhaustion
requirement of 28 U .S .C . § 2254(b){1} . Accordingly, this portion of the instant

civil rights action should be dismissed without prejudice . See Bailey v . Nagle, 172 F .3d 1299, 1307 {11th Cir. 1999) (dismissal for failure to exhaust state
remedies, is "without prejudice") ; Mavmo-Melendez v . Alvarez-Ramirez, 364 F .3d 27, 32 n .4 (1st Cir . 2004) ("a dismissal on Younger grounds is without

prejudice") ; Smith v . Mercer, 266 Fed. App'x . 906, *1 (llth Cir . 2008) (citing Maymo-Melendez and holding that dismissal under Youn ge r is without prejudice) (unpublished opinion) . 2 . Claim for Damages Plaintiff seeks money damages against the three named Defendants . For the following reasons, this portion of this civil rights action should also be dismissed . With regard to Defendant Howard, prosecutors enjoy "absolute immunity" from money damages for malicious prosecution when they perform their "role as
an advocate." Kalina v . Fletcher, 522 U . S . 118, 127 (1997) . Plaintiff, therefore,

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cannot recover money damages from Howard on the basis that he allegedly prosecuted Plaintiff in violation of the Constitution . Defendant Schumaker is Plaintiff's appointed counsel . "[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding ." Polk v . County v .
Dodson, 454 U .S . 312, 325 (1981 ) . Therefore, Plaintiff may not recover damages

from Defendant Schumaker in th i s civil rights act i on . Id. (d i sm i ss i ng § 1. 983 action against appointed defense counsel) . Plaintiff also alleges that Defendant Johnson violated the Due Process Clause during the arrest of Plaintiff and in the sworn statement given in support of the arrest. This Court liberally construes these allegations as a claim of
malicious prosecution against Defendant Johnson . The Supreme Court has held

that a plaintiff must first show that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal
court's issuance of a writ of habeas corpus pursuant before he can recover

damages in a civil rights action for malicious prosecution . Heck v . Hu=hreX, 512 U.S . 477, 486-487 (1994) ; see also Antonelli v . Foster, 104 Fad 899, 901 (7th 8
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Cir . 1997) (applying Heck to suits "premised . . . on the invalidity of confinement pursuant to some legal process, whether a warrant, indictment, information,
summons, parole revocation, conviction or other judgment") . Plaintiff's

conviction(s) and pending state criminal case have not been resolved in his favor . Accordingly, Plaintiff may not recover damages from Defendant Johnson in this action, and this claim should be dismissed with prejudice . See Abella v . Rubino,
63 F .3d 1063, 1065 (1 1 th Cir . 1995) (a civil rights action barred by Heck, should

be dismissed "with prejudice") III . Conclusion IT IS ORDERED that Plaintiff's claims challenging the constitutionality
of his pending state criminal case and his state conviction(s) are DISMISSED

WITHOUT PREJUDICE . Plaintiff's remaining claims are DISMISSED,
pursuant to 28 U .S .C . § 1915A . For the purpose of dismissal only, Plaintiff's

request for leave to file this action in forma ap upexis [Doc . 2] is GRANTED. IT IS SO ORDERED, this 4 day of .~ , 2009 .

THOMAS W . THRASH, JR. UNITED STATES DISTRICT JUDGE 9
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