Blevins v. Phillips et al
Filing
7
MEMORANDUM OPINION & ORDER; 1) pla complaint is DISMISSED WITH PREJUDICE 2) judgment shall be entered contemporaneously with this MO&O in favor of dfts. Signed by Judge Henry R. Wilhoit, Jr on 11/8/11.(SMT)cc: COR, Blevins via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
DONALD BLEVINS,
Plaintiff,
v.
REBECCA K. PHILLIPS, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Civil Action No. 10-00107-HRW
MEMORANDUM OPINION
AND ORDER
***** ***** ***** *****
Plaintiff Donald Blevins, who lists his address as 535 Ernest Drive, Marshall,
Texas, 75670-8343, has filed a pro se complaint asserting constitutional claims
against two Carter County, Kentucky officials, and one John Doe Defendant. l [D. E.
No.2]. Blevins has paid the $350.00 filing fee. [D. E. No.7]. For the reasons set
forth below, the Court will dismiss Blevins's Complaint with prejudice for failure to
state a claim upon which relief can be granted.
DISCUSSION
Blevins alleged that during an acrimonious state-court divorce proceeding, his
former spouse and her relatives, all of whom he alleges were involved in law
enforcement in Carter County, Kentucky, caused criminal charges to be filed against
The named defendants are: (l) Rebecca K. Phillips, Carter County Circuit Judge; (2) David
Flatt, Carter County Public Advocate; and (3) an unidentified "individual."
him in the Carter County Court. Blevins alleged that during that criminal proceeding,
Judge Rebecca Phillips, the presiding judge, denied him due process oflaw and thus
violated his rights under the Fourteenth Amendment of the United States
Constitution. He also claimed that David Flatt, his public defender, rendered
ineffective assistance of counsel and thus violated his rights under the Sixth
Amendment of the United States Constitution. Blevins stated:
With all his medical problems and the evil forces against them, Plaintiff
never had a chance at justice. The chronology of events that got
Plaintiffconvicted are the same reasons that plaintiffcould never expect
to get any form ofjustice in the Carter County Court. The reason that
the only court that Plaintiff could go to expect a fair hearing is this, the
federal court.
With the defendants, Judge RebeccaK. Phillips and the Public Advocate
David Flatt, and possibly Plaintiffs own attorney, Michael Curls, all
from Carter County and the town of Grayson, Kentucky. Where
Plaintiffs wife and her cousins are from. With that many related
influential official in the local government, all against Plaintiff, Plaintiff
did not have a fighting chance of obtaining justice there.
[D. E. No.2, p. 3].
Blevins did not identify what specific charges were file against him or when
they were filed, but he attached as an exhibit to his Complaint the "Commonwealth's
Offer on a Guilty Plea" in Commonwealth v. Donald Blevins, Carter Circuit Court,
Case No. 05-CR-00086, showing that he was charged in with three counts of sexual
2
abuse in the third degree. [D. E. 2-1, pp. 1-2]. According to that exhibit, the plea
agreement contained the following recommendations:
"2 yrs on each count concurrent; fine at Court's discretion. The
Commonwealth recommends 5 yrs supervised probation due to
Defendant's health."
Id.
Blevins alleged that David Flatt persuaded him to sign the plea agreement, and
that he (Blevins) signed it on July 15,2008, with the express understanding that by
pleading guilty, he would be subject only to the two specific conditions set forth in
the plea agreement. Blevins stated that when Judge Rebecca Phillips sentenced him
on September 16,2008, she imposed four additional conditions which were not a part
of the plea agreement which he had signed on July 15,2008.
These conditions were: (1) identifying his guilty plea as a "Sex Offender
Conditional Discharge;" (2) requiring him to register as a sex offender; (3) requiring
him to provide DNA samples, and (4) requiring him to participate in a sexual offender
treatment program. Blevins claimed that the imposition ofthese additional conditions
violated his right to due process of law and constituted a breach of contract, i.e., a
breach of the terms of his plea agreement.
Blevins further complained that after his conviction, and while he was confined
in the Kentucky State Reformatory, he experienced the stigma of being labeled as a
3
sexual offender, and that the stigma would prevent him from obtaining gainful
employment upon his release. Blevins seeks over $300,000.00 in compensatory
damages from the defendants, plus unspecified punitive and exemplary damages for
their alleged violations of his constitutional rights.
DISCUSSION
Blevins has been granted informa pauperis status. Under 28 U.S.C. § 1915(e),
a district court must dismiss an in forma pauperis action if it fails to state a claim
upon which relief can be granted, or if it lacks an arguable basis in law or fact. 2
Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th
Cir.1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996). As
explained below, because Blevins' claims lack an arguable basis in law or fact, they
will be dismissed with prejudice.
The Court takes judicial notice ofthe official proceedings in the Carter Circuit
Criminal Case, the docket sheet of which is of public record. On August 1, 2005,
Blevins was indicted in Carter Circuit Court for three counts of sexual abuse. See
Commonwealth of Kentucky v. Donald Blevins, Carter Circuit Case No. 05-CR
2
An informa pauperis claim asserted by a non-prisoner plaintiffmay be dismissed sua sponte,
without prior notice to the plaintiff and without service of process on the defendant, if the court
explicitly states that it is invoking section 1915(e) and is dismissing the claim for one ofthe reasons
set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601,608-09 (6th Cir.1997); Spruytte
v. Walters, 753 F.2d 498,500 (6th Cir.1985).
4
00086, Hon. Rebecca K. Phillips presiding ("the Carter Circuit Criminal Case").
According to that docket sheet, on July 16, 2008, Blevins pleaded guilty to
three counts of sexual abuse in the the Carter Circuit Criminal Case. On September
16, 2008 Judge Phillips sentenced Blevins to a concurrent two-year prison term on
each count; imposed a fine and court costs; and required Blevins to complete a sexual
offender treatment program.
On October 3, 2008, Blevins appealed his conviction and sentence to the
Kentucky Court of Appeals. See Blevins v. Commonwealth ofKentucky, Appellate
Case
No.
2008-CA-00 1871,
http://apps.courts.ky.gov/coayublic/caseInfo.
According to the docket sheet of Case No. 2008-CA-00 1871, Blevins filed a motion
to dismiss his appeal on June 9, 2009, [Appellate Docket Entry No. 24], and the
Kentucky Court ofAppeals granted that motion on July 17, 2009, [Appellate Docket
Entry No. 25]. The dismissal ofBlevins' appeal became final on September 10,2009,
[Appellate Docket Entry No. 26].3
Blevins claims in his § 1983 Complaint that Judge Phillips improperly imposed
additional conditions on him at sentencing, and that his attorney rendered infective
3
According to the docket sheet from the Carter Circuit Criminal Case, on June 24, 2009, while
Blevins' appeal was pending, he filed a motion in that proceeding seeking a waiver of the sex
offender treatment program, based on his accrued good-time credit. Judge Phillips denied the
motion on that same date.
5
assistance on counsel by failing failed to prevent those conditions from being
imposed. He states that "This action is a challenge to the actions taken by the
defendants that violated the Plaintiffs Constitutional Rights." [D. E. No.2, p. 1].
To the extent that Blevins alleges that Judge Phillips and David Flatt denied
him due process oflaw and/or denied him effective counsel during the Carter Circuit
Criminal Case, and to the extent that he seeks damages from them based on that
alleged conduct, his claims are barred by the doctrine set forth in Heck v Humphrey,
512 U.S. 477 (1994). Heck holds that "in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been [overturned]." Id. at 486-87.
Thus, before Blevins can seek damages in a 42 U.S.C. § 1983 civil rights proceeding
against those involved in his criminal conviction, he must show a favorable
termination of his criminal conviction and/or sentence, which essentially requires
showing that his conviction and/or sentence have been overturned or set aside.
Blevins could have challenged the allegedly "additional" conditions imposed
on him at sentencing (namely, the requirement that he complete the sexual offender
treatment program), in the 2008 appeal which he filed in the Kentucky Court of
Appeals. Instead, he asked to dismiss his state-court appeal in 2009, and thus
6
abandoned any challenge to that aspect of his state-court criminal sentence.
Blevins now stands convicted of three counts of sexual abuse. He does not
allege that his criminal conviction and/or his sentence have been set aside or reversed,
or otherwise called into question. Nothing in the docket sheets of either the Carter
Circuit Criminal Case or the Kentucky Court of Appeals case indicate that Blevins'
criminal conviction and/or sentence have been set aside ore reversed, or otherwise
called into question.
Under Heck, unless and until Blevins's criminal conviction and sentence are
reversed, set aside, or otherwise called into question by a tribunal authorized to do so,
he cannot show a favorable termination of his criminal conviction, and he cannot
collaterally attack his criminal conviction by seeking damages from the defendants
in a § 1983 civil rights action. Allowing Blevins to proceed with a 1983 civil rights
action against those involved in his criminal prosecution (Judge Phillips and David
Flatt, his public defender, and an unidentified "John Doe" defendant involved in his
criminal prosecution) would necessarily imply the invalidity ofthe his conviction and
confinement, a result which Heck prohibits.
Further, the Rooker-Feldman doctrine bars Blevins's claims against the
defendants. Under the Rooker-Feldman doctrine, federal courts lack jurisdiction to
review a case litigated and decided in state court, as only the United States Supreme
7
Court has jurisdiction to correct state court judgments. District ofColumbia Court
ofAppeals v. Feldman, 460 U.S. 462,476 (1983); Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923); Patmon v. Michigan Supreme Court, 224 F.3d 504, 506-07 (6th Cir.
2000). A party raising a federal question must appeal a state court decision through
the state system and then proceed directly to the Supreme Court ofthe United States.
Feldman, 460 U.S. at 483 n. 16; Rooker, 263 U.S. at415-16; United States v. Owens,
54 F.3d 271,274 (6th Cir. 1995). If Blevins wished to challenge his conviction, he
was required to have appealed his conviction through Kentucky's appellate courts
to the level of the Commonwealth's Supreme Court - and then on to the Supreme
Court of the United States. As noted, Blevins asked to dismiss his own appeal.
Blevins' claims against Judge Phillips and David Flatt, his public defender,
must be dismissed for other reasons. Judges are absolutely immune from suit for an
alleged deprivation of civil rights so long as the complained-of act was not taken in
the clear absence of all jurisdiction, and so long as the complained-of act was a
judicial act (the function was normally one performed by ajudge and the parties dealt
with the judge in his or her judicial capacity). See Pierson v. Ray, 386 U.S.
547,553-555 (1967); see also, Stump v. Sparkman, 435 U.S. 349, 356-362 (1978).
Absolute judicial immunity is not diminished even ifthe judge's exercise ofauthority
is flawed or if procedural errors occurred. Stump v. Sparkman, 435 U.S. at 359.
8
Here, the docket sheet from the Carter Circuit Criminal Case reveals that Judge
Phillips imposed a sentencing condition requiring Blevins to complete a sexual abuse
treatment program during a sentencing proceeding. She did not impose that condition
"in the absence of all jurisdiction." Furthermore, she imposed that sentence in her
judicial capacity. Judge Phillips is therefore entitled to absolute judicial immunity
with respect to the sentence she imposed on Blevins, regardless of Blevins'
dissatisfaction with that aspect ofhis criminal sentence. Blevins fails to state a claim
upon which relief can be granted against Judge Phillips, and his claims against her
will be dismissed.
Finally, Blevins asserts Sixth Amendment claims against David Flatt, his
public defender. But Flatt was and is not a "state actor" against whom liability can
be imposed under 42 U.S.C. § 1983. "To state a claim for relief in an action brought
under § 1983, [plaintiffs] must establish that they were deprived ofa right secured by
the Constitution or laws of the United States, and that the alleged deprivation was
committed under color ofstate law." American Mfrs. Mutual Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999). "[T]he under-color-of-state-Iaw element of § 1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful [.]"
Id. at 50(quotation marks and citations omitted).
The Sixth Circuit applies a three-part test to determine if private conduct is
9
fairly attributable to the state:
The public function test requires that the private entity exercise powers
which are traditionally exclusively reserved to the state .... The state
compulsion test requires proofthat the state significantly encouraged or
somehow coerced the private party, either overtly or covertly, to take a
particular action so that the choice is really that ofthe state. Finally, the
nexus test requires a sufficiently close relationship (i.e., through state
regulation or contract) between the state and the private actor so that the
action taken may be attributed to the state.
Tahfs v. Proctor, 316 F.3d 584, 591 (6th Cir. 2003) (quoting Ellison v. Garbarino,
48 F.3d 192, 195 (6th Cir. 1995)).
Neither public defenders nor court appointed criminal defense counsel qualify
as state actors. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that
a public defender is not a state actor when performing the traditional functions as
defense counsel); Anderson v. Sonenberg, 111 F.3d 962 (D.C.Cir.1997) (unpublished
table decision). Therefore, Blevins fails to state a claim upon which relief can be
granted against David Flatt.
Because Blevin fails to state a claim upon which relief can be granted against
any named defendant, the Court will dismiss, with prejudice, his Sixth and Fourteenth
Amendment claims against them. 28 U.S.C. §§ 1915(e); 1915A.
CONCLUSION
Accordingly, it is ORDERED as follows:
10
(1)
PlaintiffDonald Blevins' 42 U.S.C. § 1983 Complaint, [D. E. No.2], is
DISMISSED WITH PREJUDICE.
(2)
Judgment shall be entered contemporaneously with this Memorandum
Opinion and Order in favor of the Defendants.
This 8th day of November, 2011.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?