Fishback v. State of Mayland et al
Filing
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MEMORANDUM. Signed by Judge J. Frederick Motz on 4/4/12. (c/m af 4/4/12)(amf, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN WILLIAM FISHBACK,
Plaintiff
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v.
CIVIL ACTION NO. JFM-12-927
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STATE OF MARYLAND,
CIRCUIT COURT FOR BALTIMROE CITY *
MARYLAND COURT OF SPECIAL APPEALS,
CITY OF BALTIMORE,
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DANIEL GINSBURG,
ARTHUR M. FRANK,
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BENNETT & BAIR,
ALLEN L. SCHWAIT,
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TWILLA DRIGGINS,
PATRICIA C. JESSEMY,
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EMANUEL BROWN,
FRANK M. CONAWAY,
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GARY BAIR,
LESLIE D. GRADET, ,
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Defendants
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MEMORANDUM
Plaintiff brings this self- represented action against the State of Maryland, Circuit Court for
Baltimore City, Maryland Court of Special Appeals, City of Baltimore, private attorneys Daniel
Ginsburg, Arthur M. Frank and the law firm of Bennett & Bair, former Baltimore City State’s
Attorney Patricia C. Jessemy, Baltimore City Circuit Court Judge Allen L. Schwait, former Assistant
State’s Attorney Twilla Driggins, Emanuel Brown, Clerks of the Baltimore City Circuit Court and
Maryland Court of Special Appeals Frank M. Conaway and Leslie D. Graddet. ECF No. 1. He
asserts jurisdiction under 42 U.S.C. ' 1983.
Plaintiff states that he was charged with attempted murder of Michael Langley and Joseph
Manson and lesser included offenses by way of indictment in Case Numbers 101068048 and
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101164003. He states he was also charged with conspiracy to murder Michael Langley and Joseph
Manson in indictments 101068050 and 101164005. He indicates he was represented by private
attorney Arthur M. Frank. Judge Schwait presided over his trial which was prosecuted by former
Assistant State’s Attorney Twilla Driggins. ECF No. 1.
Plaintiff states that during sentencing, the presiding judge failed to impose penalties orally or
pronounce a guilty verdict for any of the charges within indictment numbers 101068048,
101068050, 101164003, and 101164005. He states that silence on these case numbers amounted to
an acquittal and prohibited him from being incarcerated as a result. Plaintiff states that Judge.
Schwait made it clear that plaintiff was found guilty and sentenced on case numbers 101064603 and
101068648. Plaintiff states that “at no point in time was [he] ever charged or indicted under any of
the indicment/case numbers orally pronounced by the sentencing court/Judge Allen L. Schwait.” Id.
Plaintiff states Frank M. Conaway, Clerk for the Circuit Court for Baltimore City
inaccurately recorded plaintiff’s judgment when he substituted case numbers in recording the
verdict. Id. Plaintiff indicates he has filed several motions in order to correct the alleged error but
has been unsuccessful in each endeavor. Id. In sum, plaintiff states that his judgment and
commitment are illegal. He seeks damages as well as his release from confinement. Id.
Preliminarily, the court addresses plaintiff’s motion for recusal contained within a letter
accompanying his complaint. ECF No. 1. Regarding the request for disqualification, 28 U.S.C. §
144 provides that “[w]henever a party to any proceeding in a district court makes and files a timely
and sufficient affidavit that the judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such proceeding,” and 28 U.S.C. §455 (a)
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provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself
in any proceedings in which his impartiality might reasonably be questioned.”
To be disqualifying, the alleged bias or prejudice must stem from an extrajudicial source.
See United States v. Grinnell Corp., 384 U.S. 563, 583 (1996). In other words, it must arise from
“events, proceedings, or experiences outside the courtroom.” Sales v. Grant, 158 F. 3d 786, 781 (4th
Cir. 1998). Thus, on their own, prior judicial rulings ”almost never constitute a valid basis for a bias
or partiality motion.” United Sates v. Lentz, 524 F. 3d 501, 530 (4th Cir. 2008) (citing Liteky v.
United States, 510 U.S. 540, 550 (1994)) (internal quotation marks omitted). Moreover, opinions
formed by the judge during the current proceeding, or a prior one, do not generally warrant recusal.
Id. A judge is neither required to recuse herself “simply because of unsupported, irrational or highly
tenuous speculation,” nor “simply because he possesses some tangential relationship to
proceedings.” United States v. Cherry, 330 F. 3d 658, 665 (4th Cir. 2003) (internal citation omitted).
Finally, the judge against whom the affidavit was filed may rule on its legal sufficiency. See
Marty’s Floor Covering Co., Inc. v. GAF Corp. 604 F.2d 266, 268 (4th Cir. 1979) (internal citation
omitted). The affidavit shall be construed “strictly against the movant to prevent abuse.” U.S. v.
Miller, 355 F. Supp.2d 404, 405 (D. D.C. 2005). Plaintiff has failed to file an affidavit in the instant
case. Moreover, his claims do not support an inference of bias nor otherwise demonstrate a need for
recusal. Accordingly, the motion for recusal shall be denied.
Plaintiff has filed a motion for leave to proceed in forma pauperis (ECF No. 2) which shall be
granted. Upon review of the complaint, the Court concludes that it shall be dismissed under the
provisions of 28 U.S.C. ' 1915(e). See Neitzke v. Williams, 490 U.S. 319 (1989); see also Denton v.
Hernandez, 504 U.S. 25 (1992); Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996); Nasim v. Warden,
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64 F.3d 951 (4th Cir. 1995).
Plaintiff=s claims for the allegedly unlawful actions of state court personnel must be
dismissed because plaintiff’s convictions remain intact. See Heck v. Humphrey, 512 U.S. 477, 48687 and nn. 6-8 (1994) ("a ' 1983 cause of action for damages attributable to an unconstitutional
conviction or sentence does not accrue until the conviction or sentence has been invalidated"). In
other words, a plaintiff who seeks to recover damages under ' 1983 for actions whose unlawfulness
would render a conviction or sentence invalid must first prove that the conviction or sentence has
been reversed, expunged, invalidated, or otherwise called into question. Id. Plaintiff has failed to
demonstrate that his conviction has been reversed, expunged or invalidated.1
Additionally, defendant’s claims against the State of Maryland, Circuit Court for Baltimore
City, and Maryland Court of Special Appeals may not proceed. Under the Eleventh Amendment to
the United States Constitution, a state, its agencies and departments are immune from suits in federal
court brought by its citizens or the citizens of another state, unless it consents. See Penhurst State
School and Hospital v. Halderman, 465 U. S. 89, 100 (1984). While the State of Maryland has
waived its sovereign immunity for certain types of cases brought in state courts, see Md. State Gov't
Code Ann., ' 12-202(a), it has not waived its immunity under the Eleventh Amendment to suit in
federal court. Thus, plaintiff=s complaint against the State of Maryland, Circuit Court for Baltimore
City, and Maryland Court of Special Appeals is barred by the Eleventh Amendment.
Additionally, the defense of absolute immunity extends to Aofficials whose special functions
or constitutional status requires complete protection from suit.@ Harlow v. Fitzgerald, 457 U.S. 800,
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To the extent plaintiff claims that there were constitutional deficiencies in his state court criminal proceedings,
he is free to file a petition for writ of habeas corpus pursuant to 28 U.S.C.' 2254. The court is mindful that plaintiff’s
previous efforts to file such a petition were dismissed as untimely. See Fishback v. Shearin, JFM-10-2476 (D. Md.).
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807 (1982). Judges, whether presiding at the state or federal level, are clearly among those officials
who are entitled to such immunity. See Stump v. Sparkman, 435 U.S. 349 (1978). Because it is a
benefit to the public at large, Awhose interest it is that the judges should be at liberty to exercise their
functions with independence and without fear of consequences,@ Pierson v. Ray, 386 U.S. 547, 554
(1967), absolute immunity is necessary so that judges can perform their functions without
harassment or intimidation. AAlthough unfairness and injustice to a litigant may result on occasion,
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