Gill v. United States of America et al

Filing 2

MEMORANDUM. Signed by Judge J. Frederick Motz on 10/18/13. (C/M apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RAYMOND EDWARD GILL

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Plaintiff

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v

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Civil Action No. JFM-13-2950

UNITED STATES OF AMERICA,
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STATE OF MARYLAND,
PUBLIC DEFENDER OFFICE,
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BALTIMORE CO. DEPT. OF CORRECTIONS,
DEBORAH RICHARDS,
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THOMAS FITZGERALD,
BRUCE FLANIGAN,
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SHARON TYLER,
CAPTAINS CORRECTIONAL,
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LIEUTENANTS CORRECTIONAL,
SERGEANTS CORRECTIONAL,
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OFFICER MORANO,
AGENCY SUBAGENCY: CID; and
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OFFICER ID 3778
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Defendants
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MEMORANDUM
The above-captioned self-represented complaint was filed on October 7, 2013, and has
been construed as a civil rights complaint. Plaintiff seeks monetary damages against defendants
as well as dismissal of pending criminal charges and charges of violation of probation, for
alleged violations of his rights. For the reasons that follow, the case must be dismissed.
Plaintiff was released on supervised release from federal prison and began reporting to
United States Probation Officer John Albert on August 1, 2013. ECF No. 1 at p. 3. Plaintiff is
currently confined at the Baltimore County Detention Center1 where he awaits trial on charges of
bank robbery. He asserts that defendant Detective Morano contacted Mr. Albert, who informed
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Plaintiff claims he has only been permitted to go to the detention center law library once. He has failed to state
how the limitation on his visit to the law library has caused him actual harm, therefore this claim will be dismissed
without prejudice. See Lewis v. Casey, 518 U. S. 343, 349 (1996) (requiring actual harm to non-frivolous claim).

Morano that plaintiff had been reporting to him. Plaintiff states that Morano electronically sent
Albert a copy of plaintiff’s halfway house identification photo rather than a copy of the
surveillance photographs from the bank robbery. Id. Plaintiff asserts that providing only that
photograph violated his rights to due process and amounted to an illegal photographic array. Id.
Following the exchange of plaintiff’s photograph, he was arrested on September 6, 2013, and
charged with armed robbery and first-degree assault. Id. at p. 4. On October 4, 2013, plaintiff
was indicted “on statement of facts of Officer Morano.” Id.

Plaintiff further states that the case

was never brought before the grand jury, but also alleges the grand jury transcripts are now
sealed and that he is unable to review the hearing to prove if he was indicted. Id. Plaintiff
claims that the public defender’s office is only interested in insuring that plea deals go through.
Id. As relief, plaintiff seeks dismissal of the criminal charges pending in the Circuit Court for
Baltimore County; dismissal of any pending violation of probation charges in this court; and
monetary damages. Id. at p. 5.
With respect to plaintiff’s pending state criminal charges, the instant challenge to their
validity is not properly before this court. When seeking federal habeas corpus relief with regard
to state criminal proceedings, a petitioner must show that all of the claims have been presented to
the state courts for consideration. 28 U.S.C. '2254(b) and (c); see also Preiser v. Rodriguez, 411
U.S. 475, 491 (1973). This exhaustion requirement is satisfied by seeking review of the claim in
the highest state court with jurisdiction to consider it. For a person convicted of a criminal
offense in Maryland this may be accomplished either on direct appeal or in post-conviction
proceedings. Plaintiff in the instant case has not yet stood trial; his challenge to the process of
his identification may be presented at trial. This court must abstain from ruling on state criminal

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proceedings not yet presented or ruled upon by the appropriate state court absent extraordinary
circumstances not present in the instant case. See Younger v. Harris, 401 U.S. 37 (1971).
Plaintiff’s request that this court order reinstatement of his supervised release is relief that
is presently unavailable. The relief sought is in the nature of mandamus which is unavailable
absent a showing of a clear legal right to the relief sought; a clear legal duty required of the
governmental agency to do the particular act requested; and unavailability of another adequate
remedy. See In re First Fed. Savings and Loan Ass'n of Durham, 860 F.2d 135, 138 (4th Cir.
1988); Asare v. Ferro, 999 F.Supp. 657, 659 (D. Md. 1998). The failure to show any of these
prerequisites defeats a district court's jurisdiction under 28 U.S.C. ' 1361. See National
Association of Government Employees v. Federal Labor Relations Authority, 830 F. Supp. 889,
898 (E.D. Va. 1993). In the instant case, plaintiff’s current detention is predicated on pending
state criminal charges which, as set forth above, plaintiff has not yet properly challenged in state
court.
Plaintiff’s request for monetary damages must be dismissed without prejudice pending
disposition of the criminal case against him. See Heck v. Humphrey, 512 U. S. 477, 487 (1994)
(42 U.S.C. §1983 claims impugning the legality of criminal conviction not cognizable unless
conviction is reversed).
By separate order which follows, the complaint shall be dismissed.

__October 18, 2013
Date

_______/s/_______________________
J. Frederick Motz
United States District Judge

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