SMALL v. RICHMOND STATE HOSPITAL CUSTODIAN

Filing 5

ORDER DISMISSING HABEAS PETITION, EXPANDING FILING RESTRICTION, AND DIRECTING ENTRY OF FINAL JUDGMENT - This action is dismissed without prejudice for failure to state a cognizable claim and failure to exhaust state court remedies. The clerk is dir ected to send Mr. Small a copy of this Order to notify him that this matter has been dismissed without prejudice. Final judgment shall issue by separate order. Due to Mr. Small's pattern of filing frivolous habeas petitions challenging his pr etrial detention, the Court now imposes a filing restriction that prevents Mr. Small from filing any papers under 28 U.S.C. § 2241 challenging his pretrial detention in any pending criminal matter in state court unless he first files a one-pag e certification identifying the state court case and verifying under oath that the issues raised under § 2241 have been exhausted in state court. This restriction does not apply to the filing of a notice of appeal. (See Order.) Signed by Judge James Patrick Hanlon on 3/7/2025. Copy to Petitioner via US mail. (JSR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GEORGE A. SMALL,

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Petitioner,
v.
RICHMOND STATE HOSPITAL
CUSTODIAN,
Respondent.

No. 1:25-cv-00408-JPH-KMB

ORDER DISMISSING HABEAS PETITION, EXPANDING FILING
RESTRICTION, AND DIRECTING ENTRY OF FINAL JUDGMENT
Petitioner George Small is a pretrial detainee presently confined at the
Richmond State Hospital where he is undergoing proceedings to restore his
competency. He filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 challenging his pretrial detention related to Indiana case number
49D07-2405-F5-014490.
Relatedly, Mr. Small had filed several petitions challenging his pretrial
detention as to Indiana case number 49D23-2405-CM-013977. The Court
dismissed those cases and implemented a filing ban preventing Mr. Small from
filing new actions challenging his pretrial detention in that case only. See Small
v. State, No. 1:24-cv-00942-JRS-TAB, dkt. 23 (S.D. Ind. Jan. 27, 2025).
Because Mr. Small has not raised double jeopardy or speedy trial claims
in this petition, this petition will be dismissed without prejudice. And because
Mr. Small has not stopped filing cases challenging his pretrial detention despite
not exhausting his claims in state court, this Court now expands the filing ban
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to include any petition brought under 28 U.S.C. § 2241 unless Mr. Small first
files a one-page certification identifying the state court case and verifying under
oath that the issues raised under § 2241 have been exhausted in state court.
I.

Rule 4 Dismissal

Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Court provides that upon preliminary consideration by the district court
judge, "[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner."
II.

Background and Discussion

Mr. Small was arrested for burglary and theft in May 2024 and charged in
Indiana case number 49D07-2405-F5-014490. See Case Summary, available at
mycase.in.gov. In his petition, he alleges that he was falsely charged without due
process and that his Miranda rights were violated. Dkt. 1 at 1. He requests to be
released and to receive $200 million. Id.
Criminal defendants incarcerated by a state awaiting trial may seek a writ
of habeas corpus from federal courts in limited circumstances. 28 U.S.C.
§ 2241(c)(3); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000); see also
Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015) ("The appropriate vehicle
for a state pre-trial detainee to challenge his detention is § 2241."). In general,
however, federal courts must abstain from interfering in state court criminal
proceedings if the state court provides an adequate opportunity to raise the
federal claims and "no exceptional circumstances exist that would make
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abstention inappropriate." Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662
(7th Cir. 2007) (citing Younger v. Harris, 401 U.S. 37, 43 (1971)). Relief for state
pretrial detainees through a federal petition for a writ of habeas corpus is
generally limited to speedy trial and double jeopardy claims, and only after the
petitioner has exhausted state-court remedies. Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 489?92 (1973); Younger, 401 U.S. at 49; Stroman
Realty, Inc., 505 F.3d at 662.
This petition must be dismissed because Mr. Small's claims are not
cognizable in a § 2241 petition. The Court takes judicial notice of the
chronological case summary in 49D07-2405-F5-014490 which also reflects that
Mr. Small has not exhausted any speedy trial or double jeopardy claims in state
court. Nor could he at this time, because Mr. Small has been determined to be
incompetent to proceed to trial. The Court observes that a virtual hearing was
held on February 25, 2025, and an attorney conference is scheduled for April 3,
2025. Further, Mr. Small cannot pursue monetary damages for wrongful
incarceration in a habeas action. He can only do so in an action under 42 U.S.C.
§ 1983, and only after his criminal proceedings have ended in his favor. Heck v.
Humphrey, 512 U.S. 477 (1994).
Because Mr. Small has not raised any cognizable claims in this petition
and has not exhausted his state court remedies for any potentially cognizable
claims, this action is dismissed without prejudice.

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III.

Filing Restriction

On January 27, 2025, this Court implemented a filing ban that prevented
Mr. Small from filing any papers related to Mr. Small's pretrial detention in
Indiana case number 49D23-2405-CM-013977. See Small v. State, No. 1:24-cv00942-JRS-TAB, dkt. 23 at 4-5 (S.D. Ind. Jan. 27, 2025). Since then, Mr. Small
has filed two petitions challenging his pretrial detention for other pending
matters that were dismissed for the same reason as this dismissal. See Small v.
State, No. 1:25-376-JRS-TAB, dkts. 5, 6 (S.D. Ind. Feb. 26, 2025); Small v. State,
No. 1:25-202-TWP-CSW, dkts. 6, 7 (S.D. Ind. Feb. 28, 2025). In both cases, the
Court warned Mr. Small that the Court could expand the filing ban to extend to
other matters if Mr. Small did not show that he had exhausted his claims in state
court. See No. 1:25-376-JRS-TAB, dkt. 5 at 3 ("Mr. Small is warned that if he
attempts to file another habeas action challenging this case number or any other
pending criminal case without first exhausting state court remedies, the Court
will extend the filing ban to include all pending criminal cases."); No. 1:25-202TWP-CSW, dkt. 6 at 3 ("Mr. Small is admonished that he must first exhaust state
court remedies, before filing another habeas action challenging this case number
or any other pending criminal case. Failure to comply with this admonishment
may result in a filing ban with respect to this case.").
Although those warning were only recently issued, Mr. Small was already
on notice based on the habeas cases he brought challenging his detention in
Indiana case number 49D23-2405-CM-013977 that petitions under § 2241 are
limited to double jeopardy and speedy trial claims, and only after a petitioner
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has exhausted state court remedies. And as Mr. Small was previously informed,
the Court has a duty to deter repetitious and frivolous filings. See Small v. State,
No. 1:24-cv-00942-JRS-TAB, dkt. 23 at 3 (citing Montgomery v. Davis, 362 F.3d
956, 957 (7th Cir. 2004), Support Sys. Int'l v. Mack, 45 F.3d 185, 186 (7th Cir.
1995), and Fuery v. City of Chicago, 900 F.3d 450, 452 (7th Cir. 2018)).
The Court finds that Mr. Small continues to consume an inordinate
amount of Court resources by filing frivolous habeas petitions. The Court's
previous filing ban, which was limited to one pending state court criminal matter,
has not stopped or deterred Mr. Small from filing these frivolous petitions.
Accordingly, it is now ordered that Mr. Small is prohibited from filing new
papers in this Court under § 2241 related to his pretrial detention in any
pending criminal matter in state court unless Mr. Small first files a one-page
certification identifying the state court case and verifying under oath that the
issues raised under § 2241 have been exhausted in state court.
The Court considered lesser sanctions, but they would not be effective
because previous warnings have not stopped Mr. Small's frivolous litigation
practices. See Rivera v. Drake, 767 F.3d 685, 687 (7th Cir. 2014). This restriction
does not prevent Mr. Small from filing a motion for habeas corpus under 28
U.S.C. § 2254 if and when he is convicted and then fairly presents any
constitutional claims throughout at least one complete round of state-court
review. See 28 U.S.C. § 2254(b)(1)(A); Johnson v. Foster, 786 F.3d 501, 504 (7th
Cir. 2015).

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Unless that occurs, the Clerk of this Court is ORDERED to return unfiled
any papers related to his pretrial detention that Mr. Small submits to this
Court, other than (1) filings related to a case where Mr. Small has certified
exhaustion as described above; or (2) a notice of appeal. See Thelen v. Cross, 656
Fed. Appx. 778 (7th Cir. 2016) (imposing filing ban and citing Mack, 45 F.3d
185). That said, Mr. Small is advised that if he chooses to file a notice of appeal,
he will have to pay a $605.00 filing fee, and he will only be able to proceed in
forma pauperis if this Court determines that the appeal is not brought in bad
faith. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997) (overruled on other
grounds by Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000)).
IV.

Conclusion

For the foregoing reasons, this action is dismissed without prejudice for
failure to state a cognizable claim and failure to exhaust state court remedies.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Court, the clerk is directed to send Mr. Small a copy of this
Order to notify him that this matter has been dismissed without prejudice. Final
judgment shall issue by separate order.
Additionally, due to Mr. Small's pattern of filing frivolous habeas petitions
challenging his pretrial detention, the Court now imposes a filing restriction that
prevents Mr. Small from filing any papers under 28 U.S.C. § 2241 challenging
his pretrial detention in any pending criminal matter in state court unless he
first files a one-page certification identifying the state court case and verifying

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under oath that the issues raised under § 2241 have been exhausted in state
court. This restriction does not apply to the filing of a notice of appeal.
SO ORDERED.
Date: 3/7/2025

Distribution:
GEORGE A. SMALL
498 North/West 18th St.
Richmond, IN 47374

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