Sanders v. Itawamba County et al

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 8/13/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
DAVID LEE SANDERS

PLAINTIFF

V.

NO.: 1:18CV116-RP

ITAWAMBA COUNTY, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
On August 7, 2018, plaintiff David Lee Sanders, an inmate confined at the Wilkinson
County Correctional Facility, appeared before the Court for a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), to determine whether there exists a justiciable basis for
his claim filed under 42 U.S.C. § 1983. A plaintiff’s claim will be dismissed if “it lacks an
arguable basis in law or fact, such as when a prisoner alleges the violation of a legal interest that
does not exist.” Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (citations omitted). The Prison
Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed
this lawsuit. Sanders having consented to magistrate judge jurisdiction in accordance with 28
U.S.C. § 636(c), the undersigned has the authority to enter this order and the accompanying final
judgment.
I. Plaintiff’s Allegations1
Sanders claims that he was being held on misdemeanor charges at the Itawamba County
Jail on December 18, 2012, when he was assaulted by Jailer Greg Wilmon, who found tobacco on
Sanders’ person and charged him with possession of contraband in a detention facility. Sanders
states that Wilmon, along with Itawamba County Sheriff Chris Dickerson and Jail Administrator
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In its summary of Sanders’ allegations, the Court takes judicial notice of Sanders’ prior cases before this Court to
piece together an accurate chronology of the events alleged. See Aloe Creme Laboratories, Inc. v. Francine Co.,
425 F.2d 1295, 1296 (5th Cir. 1970) (district court has right to take notice of its own files and records).

Vicky Russell, regularly allowed the inmates to smoke tobacco, and that he was charged with
having contraband just to “cover-up” Wilmon’s alleged assault.2
On January 23, 2013, Sanders pleaded guilty to the Itawamba County contraband offense
and was given a fifteen-year sentence, to run consecutively to a Monroe County grand larceny
charge for which he was given a ten-year suspended sentence. See, e.g., Doc. #1 at 15-19 in
Sanders v. Itawamba County, Cause No. 1:16cv142 (N.D. Miss.). The trial court credited
Sanders with time served and suspended the remainder of the contraband sentence contingent
upon his compliance with post-release supervision requirements. Id. at 15. In November 2013,
however, Sanders was arrested and charged with burglary of a dwelling and grand larceny in
Itawamba County, and his post-release supervision for the contraband offense was revoked. See,
e.g., id. at 24 & 30. During his Spears hearing, Sanders confirmed that his post-release
supervision for the Monroe County grand larceny offense was also revoked on the same day.
By order entered on December 18, 2013, Sanders was ordered to serve a five-year sentence, with
the sentence to run consecutively to his previously-suspended Monroe County sentence. See
Doc. #23-4 in Sanders v. Itawamba County, Cause No. 1:16cv142 (N.D. Miss.). In 2014,
Sanders was also convicted of burglary and grand larceny offenses in Chickasaw County and is
under a sentence of imprisonment for those offenses. See https://www.ms.gov/mdoc/inmate
(search by “Last Name” and “First Name”) (last visited August 9, 2018).
Sanders later sought federal habeas relief and State post-conviction relief, arguing that he
was charged with a non-existent felony for possessing tobacco.3 The State court agreed, and by

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Sanders’ brought an excessive force claim against these Defendants that was unsuccessfully litigated in Cause No.
1:16cv212 (N.D. Miss.).

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Tobacco is not “contraband” under the relevant statutes. See Miss. Code Ann. § 47-5-193; Miss. Code Ann. § 475-191. Sanders could have potentially faced only misdemeanor charges under Miss. Code Ann. § 47-5-192 (giving
authority to MDOC commissioner to identify non-permissible items in detention facility and deeming violation of
that promulgation as misdemeanor punishable by not more than one year of incarceration).

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order entered May 17, 2018, Sanders’ conviction and sentence for possession of contraband in a
detention facility was set aside.
Thereafter, Sanders filed the instant § 1983 action, alleging that jail personnel, the
attorneys, and the judge all knew the relevant law and ignored it to secure his wrongful
conviction for a non-existent felony. He asks the Court to award him monetary damages for the
Defendants’ actions.
II. Immunities
Circuit Court Judge James L. Roberts is entitled to be dismissed from this action, as he
has absolute judicial immunity from suit for actions taken in a judicial capacity. See, e.g., Stump
v. Sparkman, 435 U.S. 349, 351-64 (1978). Accepting a plea and sentencing a defendant are
functions normally performed by judges, and therefore, Roberts is immune from suit. See
Forrester v. White, 484 U.S. 519, 227 (1988) (noting “immunity is justified and defined by the
functions it protects and serves, not by the person to whom it attaches”) (emphasis in original).
Similarly, Sanders cannot maintain suit against the prosecutors in this action, as “a state
prosecuting attorney who act[s] within the scope of h[er] duties in initiating and pursuing a
criminal prosecution” is not amenable to suit under § 1983. Imbler v. Pachtman, 424 U.S. 409,
410 (1976); Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994) (prosecutor immune from action
alleging knowing use of perjured testimony, malicious prosecution, and conspiring with judge).
Because prosecutors have absolute immunity for activities connected with judicial proceedings,
Defendants Nebora Porter and Jerrolyn Owens must be dismissed from this action. See, e.g.,
Imbler, 424 U.S. at 431 (providing protection for prosecutor’s conduct “in initiating a
prosecution”).
Next, the Court finds that Sanders cannot assert a claim for damages against the
Mississippi Department of Corrections (“MDOC”) or the State itself, as each is entitled to
sovereign immunity pursuant to the Eleventh Amendment of the Constitution. U.S. Const.
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Amend XI; Perez v. Region 20 Educ. Service Ctr., 307 F.3d 318, 326 (5th Cir. 2002); Williams v.
Miss. Dep’t of Corr., No. 3: 12cv259-CWR-FKB, 2012 WL 2052101 at *1 (S. D. Miss. June 6,
2012) (noting MDOC is entitled to immunity as arm of the State); see also Miss. Code Ann. §
47-5-1, et seq. Therefore, MDOC and the State are entitled to be dismissed from this suit.
III. “State actor” requirement
The Court finds that Sanders’ public defender, Christopher Bauer, is not amenable to suit,
as relief under § 1983 is only available to vindicate a plaintiff’s federal rights against a defendant
acting under color of state law. 42 U.S.C. § 1983. “[A] lawyer representing a client is not, by
virtue of being an officer of the court, a state actor ‘under color of state law’ within the meaning
of § 1983.” Polk County v. Dodson, 454 U.S. 312, 318 (1981). Accordingly, Bauer is entitled to
be dismissed from this lawsuit.
IV. Itawamba County Defendants
Sanders alleges that Itawamba County, along with Officers Chris Dickerson, Vicky
Russell, and Greg Wilmon (“County Defendants”), initiated false criminal charges against him,
resulting in a wrongful conviction. However, there is no freestanding constitutional right to be
free from criminal charges or prosecution. See Castellano v. Fragozo, 352 F.3d 939, 945 (5th
Cir. 2003) (citation omitted). Accordingly, he cannot maintain a § 1983 action against these
Defendants for malicious prosecution.
A plaintiff may be able to assert a substantive due process violation if he can demonstrate
that he was deliberately falsely charged, and Fourth Amendment relief is unavailable. See Cole
v. Carson, 802 F.3d 752, 772-73 (5th Cir. 2015), vacated sub nom. Hunter v. Cole, 137 S. Ct.
497 (2016). However, as the Court has noted, the decision whether to bring criminal charges
rests solely with the prosecutor. See, e.g., Buckley v. Fitzsimmons, 50 U.S. 259, 272-73 (1993);
Imbler, 424 U.S. at 431. Because Sanders’ prosecution was initiated and maintained by
prosecutorial function, not by the actions of the County Defendants, he cannot sustain a claim
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against them for the erroneous charge. Moreover, Sanders concedes that he was in possession of
tobacco, which is against the administrative rules of prison facilities. Therefore, Sanders was
erroneously charged with a felony, but evidence was not fabricated against him to secure that
charge. Rather, the wrong statute was applied. The Court sympathizes with Sanders’ frustration
at having to file various actions to get his Itawamba County criminal case rectified. However,
“[a] mistake is not enough to support a substantive due process claim.” Rogers v. Lee Cty.,
Mississippi, 684 F. App'x 380, 390 (5th Cir. 2017). Accordingly, Sanders cannot sustain a §
1983 claim for malicious prosecution or a violation of substantive due process because he was
erroneously charged.
V. Retaliation
In his complaint, Sanders alleges that he was charged with contraband as part of a coverup. At his Spears hearing however, he stated that he could not imagine a reason why the
defendants erroneously charged him with a felony. Despite this inconsistency, the Court will,
out of an abundance of caution, consider whether Sanders has stated an actionable claim for
retaliation.
To state a claim for retaliation, Sanders must allege the violation of a specific
constitutional right and be prepared to establish that but for the retaliatory motive, the
complained of incident (here, the tobacco charge) would not have occurred. Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995) (quotations omitted); see also Jones v. Greninger, 188 F.3d 322,
325 (5th Cir. 1999). In this case, Sanders does not allege that he was charged with the tobacco
offense after complaining about an incident of excessive force, nor does he allege the existence
of a constitutional right to possess tobacco in a detention facility. Rather, he claims simply that
officers decided to charge him with possession of tobacco to “cover-up” their assault of him.
Therefore, Sanders cannot demonstrate that he was charged with a felony because of the exercise
of a constitutional right. See, e.g., Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (holding
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“defendant’s intent to retaliate against the prisoner for his or her exercise of that [constitutional]
right” an element of retaliation claim).
Even if the Court were to find, however, that Sanders had alleged that he was charged
with the tobacco offense because of the exercise of a constitutional right, the Court again notes
that Sanders’ prosecution was not initiated by the County Defendants, but rather, by the
prosecutor who is absolutely immune in this action and who has no participation in the alleged
attack on Sanders. Finally, if the Court were to assume that the County Defendants swore out
affidavits and coerced the prosecutor to initiate felony charges against Sanders for possession of
contraband, and that such action would be sufficient to state a retaliation claim, the Court finds
that the applicable statute of limitations has lapsed on this claim, which began to run the instant
Sanders was charged with the contraband offense. See, e.g., Owens v. Okure, 488 U.S. 235, 249
(1989) (federal court borrows State’s general personal injury limitations period); Miss. Code
Ann. § 15-1-49 (allowing inmate three years to file action after he “becomes aware he has
suffered an injury or has sufficient information to know he has been injured”). Because Sanders
was charged with the tobacco offense at least by January 23, 2013, the date he pleaded guilty to
the offense, he had only up to and including January 23, 2016, to allege that the county
defendants attempted to induce the State to prosecute him with retaliatory motives. Accordingly,
any retaliation claim he might have raised has now expired.
VI. Conclusion
Mississippi’s statutory laws were unquestionably misapplied in Sanders’ prosecution for
possession of tobacco. However, Sanders cannot sustain a federal constitutional claim against
any of the named Defendants for the mistake made in his case. Additionally, the Court notes that
Sanders’ post-release supervision for the concededly-valid Monroe County conviction was
revoked the same day as was his supervision for the now-vacated Itawamba County conviction,

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and as such, he was not at any time unlawfully incarcerated merely because of the erroneous
felony charge.
Accordingly, for the reasons set forth in this Memorandum Opinion and Order, the
instant complaint is DISMISSED for failure to state a constitutional claim, and all Defendants
are hereby DISMISSED WITH PREJUDICE from this action. A separate final judgment will
issue today.
SO ORDERED this the 13th day of August, 2018.

/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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