Newsome v. State of Mississippi et al
Filing
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Memorandum Opinion and Order of Dismissal. A separate final judgment will be entered pursuant to Federal Rule of Civil Procedure 58. Signed by District Judge Halil S. Ozerden on 8/15/18 (PKS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICARDO BRYAN NEWSOME,
# 123359
v.
PLAINTIFF
CIVIL NO. 1:18cv178-HSO-RHW
STATE OF MISSISSIPPI, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court sua sponte. Pro se Plaintiff Ricardo Bryan
Newsome is incarcerated with the Mississippi Department of Corrections
(“MDOC”), and he brings this action pursuant to 42 U.S.C. §§ 1983 and 1985,
challenging his arrest, conviction, sentence, and conditions of confinement. For the
reasons set forth below, this case will be dismissed.
I.
BACKGROUND
On February 22, 2018, Newsome was convicted of burglary in the Circuit
Court of Harrison County, Mississippi, and was sentenced to serve a twenty-five
year term of imprisonment in the custody of MDOC. Pl.’s Resp. Ex. [12-1] at 4.
Newsome was transferred to MDOC on April 3, 2018. Compl. [1] at 5. In this
lawsuit, Newsome has named twenty-eight Defendants who are various actors
alleged to have been involved in Newsome’s arrest, detention, and conviction: the
State of Mississippi; the Harrison County Adult Detention Center; the Circuit Court
of Harrison County; the Gulfport, Mississippi, Police Department; state prosecutors;
the grand jury foreperson; judges; the criminal defense team; police officers; the
Circuit Court Clerk; trial witnesses; and county correctional officers. Id. at 2-3, 14-
15.
Newsome claims he was arrested by the Gulfport Police Department on
January 9, 2017, id. at 5, but that Defendant Judge Brandon Ladner had not signed
the arrest warrant, id. at 19. Newsome faults Defendants Detective Jerry
Birmingham and Sergeant Wayne Payne for arresting him without a signed
warrant or without probable cause, id. at 23-24, and Birmingham allegedly did not
read Newsome his rights or question him, id. at 23. Newsome contends
Birmingham also did not have witnesses sign their statements and falsified those
statements in his investigative report “to accommodate his action or action[s] done
in court.” Id. at 18. Newsome maintains that Defendant Lieutenant Matt
Thomas approved Birmingham’s report, id. at 19, and that the Gulfport Police
Department is vicariously liable for the actions of its employees, id. at 21.
Newsome next accuses the State and the Circuit Court of convicting him in
violation of due process. Id. at 5-6, 16. First, Newsome asserts that Defendants
District Attorney Joel Smith, Grand Jury Foreperson Kim Reinike, and Circuit
Court Clerk Connie Ladner improperly indicted him because the indictment was
filed outside the grand jury’s term. Id. at 16-18. Newsome contends that
Detective Birmingham “[a]lso sign[ed] off on improper indictment.” Id. at 18. It is
not clear if Birmingham is accused of presenting the alleged falsified statements to
the grand jury or to the trial jury. Id. Next, Newsome claims the trial jury was
biased because some jurors had served on other criminal cases when the “D.A. office
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wanted guilty verdicts.” Id. at 21. Newsome further alleges that Defendant
Assistant District Attorney Christopher D. Carter spoke with Defendant witnesses
Richard Allen Tobey, Terry Tolar, Jasamine Sales, and Wiberth Cardona and either
“cohersed [sic],” or conspired with them to provide false trial testimony. Id. at 1719.
Newsome next alleges that Defendant Judges Melvin Ray and Louise Ladner
failed to correct alleged discovery violations and that Judge Ladner was aware “the
date on initial appearance was change[d] and she failed to correct it.” Id. at 20, 24.
The actual trial judge, Defendant Judge Roger Clark, is accused of allowing
misconduct by Plaintiff’s criminal trial counsel, preventing “group voir dire” (which
allegedly prohibited the selection of an impartial jury), and issuing an illegal
sentence. Id. at 17. Newsome claims the Circuit Court had no personal
jurisdiction over him, rendering his conviction and sentence void, id. at 21, and that
the allegedly void conviction and sentence rendered his detention in the County
Detention Center illegal, id.
Newsome also accuses employees of the Public Defender’s office of causing his
alleged illegal conviction. Specifically, Newsome alleges that Defendant attorney
Geoffery Germany represented him at the preliminary hearing and failed to object
to the indictment, id. at 20, and that his criminal trial attorney, Defendant
Theressia A. Lyons, conspired with Carter to admit evidence of prior bad acts, id. at
17. Lyons is also accused of revealing privileged information to Detective
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Birmingham, which Newsome maintains prevented him from taking the witness
stand in his own defense. Id. at 18. Lyons also purportedly failed to object to the
dismissal of a prospective juror, to the prosecutor’s alleged insult about Newsome,
and to the lack of group voir dire. Id. at 18, 20. Finally, Lyons is accused of
implicating Newsome’s guilt in a post-judgment motion. Id. at 18.
Defendant defense counsel Lisa Collins, who is said to have co-chaired at
trial, allegedly witnessed Lyons’s supposed inadequacies but did not correct them,
and also failed to object to the absence of group voir dire. Id. at 18, 20. Newsome
further claims that Defendant Damon Reese, the investigator for the Public
Defender’s office, was made aware of the alleged discovery violations, the unsigned
arrest warrant and witness statements, the false investigation report, and the
improper indictment but failed to report them. Id. at 23. Defendant Public
Defender Glenn Rishel allegedly filed discovery motions on Newsome’s behalf, even
though Rishel was not appointed to represent Newsome. Id. at 18. Newsome
claims some of the discovery was tampered with, and he cannot exclude Rishel as
the culprit “pending investigation.” Id.
Aside from Newsome’s conviction, the Complaint also challenges the
conditions of his confinement, claiming his mail was censored and he was denied
access to the courts by the Detention Center and Defendants Sergeant Richards and
Officer Nebbles, its employees. Id. at 16, 19.
Finally, Defendants police officer Kyle Luber and prosecutor Herman Cox
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purportedly “decided to engage in misconduct that posed pervasive and
unreasonable risk of constitutional violation and injury to” Newsome, because they
did not prevent the misconduct of others. Id. at 20, 25. Cox is accused of not
correcting the prosecutors’ alleged violations. Id. at 25.
Plaintiff initiated this civil action on May 24, 2018, specifically invoking 42
U.S.C. §§ 1983 and 1985. On July 11, 2018, Newsome moved to voluntarily dismiss
Judges Ray, Brandon Ladner and Louise Ladner; Officer Luber; and his claims
related to his mail and denial of access to courts. Pl.’s Resp. [12] at 2. Plaintiff
seeks release and “any relief this honorable Court deems necessary.” Compl. [1] at
6.
II.
A.
DISCUSSION
The Prison Litigation Reform Act
The Prison Litigation Reform Act of 1996 (“PLRA”), 28 U.S.C. § 1915, applies
to prisoners proceeding in forma pauperis in this Court. The PLRA provides in
part that “the court shall dismiss the case at any time if the court determines that .
. . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). This framework “accords judges not
only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are clearly baseless.”
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Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quotation omitted).
In an action proceeding under § 1915, courts may “evaluate the merit of the
claim sua sponte.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly,
the court is authorized to test the proceeding for frivolousness or maliciousness even
before service of process or before the filing of the answer.” Id. So long as the
inmate “has already pleaded his ‘best case’” and his “insufficient factual allegations
[cannot] be remedied by more specific pleading,” the Court may dismiss the action
sua sponte. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (quoting
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994)). Because the Court has permitted
Newsome to proceed in forma pauperis, this case is subject to the provisions
allowing for sua sponte dismissal under § 1915.
Newsome brings this action under §§ 1983 and 1985, challenging his arrest,
conviction and sentence. He has voluntarily dismissed his mail and denial of
access claims and his claims against Judge Melvin Ray, Judge Brandon Ladner,
Judge Louise Ladner, and Officer Luber. Newsome’s mail and denial of access
claims, and his claims against Defendants Judge Melvin Ray, Judge Brandon
Ladner, Judge Louise Ladner, and Officer Luber will therefore be dismissed without
prejudice. What remains are Newsome’s claim for illegal arrest and his challenges
to his conviction and sentence.
B.
Newsome’s illegal arrest claim
Newsome first sues the Detention Center, Police Department, Detective
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Birmingham, Lieutenant Thomas, and Sergeant Payne for an allegedly false arrest.
1.
Detention Center and Police Department
The capacities of a jail and police department to be sued are determined
according to Mississippi law. Fed. R. Civ. P. 17(b)(3). Under Mississippi law,
neither is a separate legal entity which may be sued. Rather, the jail is an
extension of the county, and the police department is an extension of the city.
Miss. Code Ann. § 21-17-1(1) (municipalities are distinct legal entities); Miss. Code
Ann. § 21-21-1, et seq. (municipalities may create and fund police departments);
Tuesno v. Jackson, No. 5:08cv302-DCB-JMR, 2009 U.S. Dist. LEXIS 61416 at *2-3
(S.D. Miss. Apr. 30, 2009); see also Brown v. Thompson, 927 So. 2d 733, 737 (&12)
(Miss. 2006) (sheriff=s department).
The foregoing concept was explained to Newsome in the Order Amending
Docket and Requiring Plaintiff to Respond [7], entered on June 28, 2018. Order
Amending Docket & Requiring Pl. to Respond [7] at 2. In that Order, the Court
allowed Newsome the opportunity to add Harrison County and the City of Gulfport
as Defendants, as well as to state any claims he may have against them. Id.
Plaintiff declined. Pl.’s Resp. [12] at 1. Therefore, the Harrison County Adult
Detention Center and Gulfport Police Department are not proper parties and should
be dismissed.
2.
Gulfport Police Officers
Newsome alleges that Detective Birmingham and Sergeant Payne arrested
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him without a valid warrant or probable cause. Newsome contends Birmingham
falsified witness statements in his investigative report in order “to accommodate his
action or action[s] done in court. . . . Also sign [sic] off on improper indictment.”
Compl. [1] at 18. Newsome maintains Lieutenant Thomas approved Birmingham’s
report.
Plaintiff admits he was subsequently indicted, but it is not clear if he is
claiming that Birmingham tainted the indictment. “[I]f facts supporting an arrest
are placed before an independent intermediary such as a . . . grand jury, the
intermediary’s decision breaks the chain of causation for false arrest, insulating the
initiating party.” Taylor v. Gregg, 36 F.3d 453, 456-57 (5th Cir. 1994). This only
holds true if “all the facts are presented to the grand jury . . . and the malicious
motive of the officer does not lead him to withhold any relevant information.” Id.
at 457. In other words, Newsome would have to prove the grand jury’s probable
cause finding was tainted by the allegedly falsified witness statements. McLin v.
Ard, 866 F.3d 682, 689 (5th Cir. 2017).
The Fifth Circuit Court of Appeals recently examined this issue in a case
against a sheriff’s deputy who was accused of maliciously making material
omissions in an affidavit in order to obtain an arrest warrant without probable
cause. Winfrey v. Rogers, 882 F.3d 187, 192 (5th Cir. 2018). In that case, the
plaintiff was acquitted following a jury trial. Id. at 194. The Winfrey court held
there was no probable cause to arrest the plaintiff. Id. at 199-200. The deputy
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argued that he was not liable for false arrest because a grand jury had subsequently
indicted the plaintiff. Id. at 200. Because the record showed that “the only
information before a grand jury was the information in [the deputy’s] affidavit” in
support of the warrant, the indictment did not break the causal chain between the
faulty arrest warrant and the plaintiff’s incarceration. Id. at 200-01.
If Newsome is not asserting that the grand jury’s decision was tainted by the
allegedly false witness statements, then his illegal arrest claim is barred by the
independent intermediary doctrine. This is because his indictment would break
the chain between the initial false arrest and his incarceration, and such a false
arrest claim would be frivolous.
If, however, Newsome is claiming that the indictment was tainted by
Birmingham’s allegedly false report, his case faces yet another hurdle. A civil
action that challenges the fact or duration of a state conviction or sentence “is
barred (absent prior invalidation) . . . if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005) (emphasis in original). In such a case, a “plaintiff must
prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such a
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). If success on the
claim “will not necessarily imply the invalidity of confinement or shorten its
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duration,” then the action may proceed. Wilkinson, 544 U.S. at 82.
To the extent Newsome is claiming that the indictment was returned based
upon false information, success on such a claim would necessarily invalidate his
state conviction. Perez v. United States, 481 F. App’x 203, 207 (5th Cir. Jul. 19,
2012). Newsome would have shown that his indictment was defective and was
obtained by fraud. Id. Therefore, Newsome may only proceed if he proves his
conviction has already been invalidated. Newsome admits that the burglary
conviction still stands. Pl.’s Mot. to Dismiss [9] at 1 (asking this Court to reverse
conviction).
Because his state conviction has not been invalidated, Newsome is precluded
by Heck from challenging it in this civil action at this time. Plaintiff’s illegal or
false arrest claim will be dismissed with prejudice for failure to state a claim, until
such time as he has this conviction invalidated via appeal, post-conviction relief,
habeas corpus relief, or otherwise. Johnson v. McElveen, 101 F.3d 423, 424 (5th
Cir. 1996).
C.
Newsome’s illegal conviction and sentence claims
Newsome accuses the State, the trial court, prosecutors, the grand jury
foreperson, Circuit Judge Clark, defense counsel and investigator, Public Defender
Rishel, Detective Birmingham, state court clerk, trial witnesses, and Lieutenant
Thomas of illegally convicting him. Newsome contends he was convicted without
jurisdiction and based upon a defective indictment, knowingly false evidence,
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prosecutorial misconduct, ineffective assistance of counsel, and a biased jury.
Newsome additionally claims that he was deprived of the right to testify in his own
defense, and that Judge Clark rendered an illegal sentence.
Success on each of these claims would necessarily invalidate Newsome’s
conviction and sentence. Because Newsome admits his conviction and sentence
still stand, these claims are also precluded by Heck.
D.
Newsome’s claims for habeas relief
Finally, although Newsome specifically proceeds under 42 U.S.C. §§ 1983 and
1985, part of the relief he seeks is release from custody. To the extent Newsome
challenges his conviction and sentence and seeks speedier release from
incarceration, a claim under § 1983 or § 1985 is not the proper vehicle to do so.
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). Rather, Newsome must pursue a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. Before Newsome can
pursue his habeas claims in this Court, however, he must exhaust his available
state remedies, 28 U.S.C. §2254(b)(1)(A), and provide “the State the ‘opportunity to
pass upon and correct’ alleged violations of its prisoners’ federal rights.” Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
In order to exhaust his habeas claims, Newsome is required to seek relief from the
highest court of the State. O’Sullivan v. Boerckel, 526 U.S. 838, 840 (1999).
Newsome has not shown that he has exhausted his habeas claims, and the Court
declines to sever them. Rather, Newsome’s habeas claims will be dismissed
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without prejudice.
III.
CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff Ricardo
Bryan Newsome’s claims related to his mail and denial of access to courts and his
claims against Defendants Judge Brandon Ladner, Judge Melvin Ray, Judge Louise
Ladner, and Kyle Luber are DISMISSED WITHOUT PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(a).
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Ricardo
Bryan Newsome’s remaining false arrest claims against Defendants Harrison
County Adult Detention Center, Gulfport Police Department, Jerry Birmingham,
Matt Thomas, and Wayne Payne are DISMISSED WITH PREJUDICE as
frivolous and for failure to state a claim against them upon which relief could be
granted.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Ricardo
Bryan Newsome’s remaining 42 U.S.C. §§ 1983 and 1985 claims challenging his
conviction and sentence are DISMISSED WITH PREJUDICE for failure to state
a claim until such time as Plaintiff demonstrates that his state conviction and
sentence have been invalidated via appeal, post-conviction relief, habeas corpus
relief, or otherwise.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Ricardo
Bryan Newsome’s habeas corpus claims are DISMISSED WITHOUT
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PREJUDICE. A separate final judgment will be entered pursuant to Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 15th day of August, 2018.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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