GREEN v. GRAY et al

Filing 5

Entry Dismissing Complaint and Directing Further Proceedings - The plaintiff's motion to proceed in forma pauperis, [2,] is denied as presented. He shall have until October 17, 2017, in which renew his motion to proceed in forma pauperis. This C ourt was unable to identify any viable claim alleged in the complaint. Accordingly, the complaint must be dismissed for each of the reasons set forth above. Mr. Green shall have through October 17, 2017, in which to show cause why Judgment consistent with this Entry should not issue. SEE ORDER. Signed by Judge William T. Lawrence on 9/19/2017. (JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

DAVID W. GREEN, JR.,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
TIMOTHY GRAY Prosecutor Clark Co.,
VICKI L. CARMICHAEL Judge,
KRISTINE NOLE esq.,
RICHARD BROWN Warden,
Defendants.

Case No. 2:17-cv-00430-WTL-MJD

Entry Dismissing Complaint and Directing Further Proceedings
I.
The plaintiff’s motion to proceed in forma pauperis, Dkt. No. 2, is denied as presented. He
shall have until October 17, 2017, in which renew his motion to proceed in forma pauperis by
attaching a copy of the transactions associated with his institution trust account for the 6-month
period preceding the filing of this action on May 26, 2015. 42 U.S.C. § 1915(a)(2). Otherwise, the
plaintiff must pay the $ 400.00 filing fee.
II.
Plaintiff David W. Green is a prisoner currently incarcerated at Wabash Valley
Correctional Facility. Because Mr. Green is a “prisoner” as defined by 28 U.S.C. § 1915(h), this
Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the
defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant

who is immune from such relief. In determining whether the complaint states a claim, the Court
applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive
dismissal,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by Mr. Green are
construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.
Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
III.
Mr. Green filed this civil action against Prosecutor Timothy Gray, Judge Vicki L.
Carmichael, Attorney Kristine Nole, and Warden Richard Brown. For the reasons explained
below, the complaint is dismissed for failure to state a claim upon which relief can be granted.
A. Unjust Conviction Statutes
Mr. Green states that this action is brought pursuant to the Unjust Conviction Statutes, 28
U.S.C. §§ 1495 and 2513 (collectively). Unfortunately, for Green, these statutes do not apply to
the circumstances he alleges because he has not been convicted of a federal offense. Nyabwa v.
United States, 130 Fed. Cl. 179, 184–85 (2017)(holding that “[b]oth 28 U.S.C. § 1495 and 28
U.S.C. § 2513 relate to criminal offenses against the United States, and, this court does not have
jurisdiction to hear a plaintiff’s unjust conviction and imprisonment claims arising from state
crimes.”). Even if Mr. Green had been convicted of a federal offense, his claims could only be
brought in the United States Court of Federal Claims, not this district court. 28 U.S.C. § 1495.
2

B. Release from Custody
Next, Mr. Green argues that the defendants are liable to him for violating his Fourteenth
Amendment rights. Specifically, the defendants refuse to release him from custody as directed by
the Clark County Circuit Court. Relatedly, Green claims that the defendants violated his Sixth
Amendment rights by denying him a speedy public trial by an impartial jury, with the ability to
call witnesses and counsel to aid his defense is similarly dismissed.
These claims amount to attacks on Mr. Green’s criminal sentence calculation and the
manner in which his criminal trial was conducted. These claims cannot be brought as a civil rights
action because if successful they would entitled Mr. Green to immediate release from custody.
Heck v. Humphrey, 512 U.S. 477 (1994), “forbids a prisoner in his civil rights case to challenge a
finding in his criminal or prison-discipline case that was essential to the decision in that case; if he
insists on doing that, the civil rights case must be dismissed.” Moore v. Mahone, 2011 WL
2739771, *1 (7th Cir. 2011) (citing Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003)).
Instead, any claim that the plaintiff is being held beyond his release date may only be brought as a
writ of habeas corpus. A writ of habeas corpus is the exclusive remedy to challenge the fact or
duration of confinement. Nelson v. Campbell, 541 U.S. 637, 646 (2004) (“[D]amages are not an
available habeas remedy.”).
C. Absolute Immunity
The claims against the judge and prosecutor are also dismissed. This is because they are
entitled to absolute immunity for their actions taken in the state criminal case, even if Mr. Green
believes they acted improperly. See Stump v. Sparkman, 435 U.S. 349, 359 (1978) (judicial

3

immunity); Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (prosecutorial immunity). Accordingly,
Timothy Gray, Prosecutor of Clark County and Judge Vicki L. Carmichael are dismissed.
D. Section 1983
The claims against Kristine Nole are dismissed because she is not a person subject to suit
under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States and must show that the
alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988). “The color of state law element is a threshold issue; there is no liability under
[Section] 1983 for those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d
628, 638 (3d Cir. 1995). A person acts under color of state law only when exercising power
“possessed by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.” United States v. Classic, 313 U.S. 299, 326 (1941).
Under authority established for more than a generation, Attorney Nole does not act under
color of state law while representing Mr. Green in the criminal proceeding, even if paid by public
funds. See Polk County v. Dodson, 454 U.S. 312, 324 (1981)(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 case). Accordingly, defendant Kristine Nole, Esq. is dismissed.
III.
This Court was unable to identify any viable claim alleged in the complaint. Accordingly,
the complaint must be dismissed for each of the reasons set forth above. Mr. Green shall have
through October 17, 2017, in which to show cause why Judgment consistent with this Entry
should not issue. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013)

4

(“Without at least an opportunity to amend or to respond to an order to show cause, an IFP
applicant’s case could be tossed out of court without giving the applicant any timely notice or
opportunity to be heard to clarify, contest, or simply request leave to amend.”).

Date: 9/19/17

Distribution:

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

DAVID W. GREEN, JR.
259554
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only

5