Franklin v. Smith et al
Filing
63
ORDER granting 41 Motion for Summary Judgment; granting 52 Motion for Summary Judgment; denying 56 Motion ; denying 58 Motion ; denying 59 Motion ; granting 31 Motion for Summary Judgment. Signed by Magistrate Judge F. Keith Ball on March 23, 2012.Copy mailed to Plaintiff. (WS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
RICKY LEVERT FRANKLIN
PLAINTIFF
V.
CIVIL ACTION NO. 3:10-cv-00303-FKB
ROBERT SMITH, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Robert Smith’s Motion for Summary
Judgment, Docket No. 31, as well as the Motion for Summary Judgment filed by Defendants
Malcolm McMillin and Rebecca Pittman, Docket No. 41, Smith’s Supplemental Motion for
Summary Judgment, Docket No. 52, Plaintiff’s Motion to “Notice,” Docket No. 56, Plaintiff’s
“Motion for Count 1,” Docket No. 58, Plaintiff’s “Motion for Sentencing Date,” Docket No. 59,
and Plaintiff’s “Motion to Locate Witness,” Docket No. 60. Having considered the motions,
memoranda and supporting documents, and having heard Plaintiff’s testimony at the Spears
hearing1 in this matter, the Court concludes that Defendants’ motions are well-taken and should
be granted.2 Plaintiff’s motions are denied.3
1
The Court held what is known as a “Spears Hearing” in this claim brought pursuant to
42 U.S.C. §1983, to insure Plaintiff had every opportunity to fully explain his claim against
Defendants. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Plaintiff consented to the undersigned deciding this case, and the matter was referred
pursuant to 28 U.S.C. § 636(c). Docket Nos. 49 - 50.
3
Plaintiff’s motions are, for the most part, responses to Defendants’ motions, and the
Court has considered them as such. Docket No. 60 appears to be merely a copy of a motion filed
in Plaintiff’s state court case and will be terminated as a motion in this case.
1
I. FACTS
Plaintiff was indicted by a Hinds County, Mississippi, grand jury on charges of rape,
sexual assault, aggravated assault and kidnaping. He was ultimately convicted of aggravated
assault and kidnaping. Docket No. 54-1, pp. 2-3. After he was arrested but before he was
convicted, Franklin filed the instant action pursuant to 42 U.S.C. § 1983. Defendant Robert
Smith, Hinds County District Attorney, has moved for summary judgment on the basis of
prosecutorial immunity. Defendant McMillin, Hinds County Sheriff at the time of Plaintiff’s
arrest, and Defendant Pittman, an investigator, have moved for summary judgment on the basis
of immunity, and all defendants assert that most, if not all, of Plaintiff’s claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994).
II. DISCUSSION
A. CLAIMS AGAINST SMITH
Franklin claims that District Attorney Smith made false statements to the media about
him, that Smith gathered and supervised the gathering of false evidence against him, and that
Smith submitted false evidence. Docket No. 1, p. 4. Franklin filed his complaint before he was
convicted, and as relief, he sought dismissal of the kidnaping and aggravated assault charges of
which he was ultimately convicted. He also sought monetary damages, but did not seek
dismissal of the rape or sexual battery charges. Docket No. 1.
Prosecutors “are absolutely immune from liability under § 1983 for their conduct in
‘initiating a prosecution and in presenting the State’s case,’ insofar as that conduct is ‘intimately
associated with the judicial phase of the criminal process[.]’” Burns v. Reed, 500 U.S. 478, 486
2
(1991) (citations omitted) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)).
The Burns Court concluded, with respect to claims similar to Franklin’s, that immunity:
is applicable to [the prosecutor's] appearance in court to support the
search warrant application and his presentation of evidence
at that hearing. [Plaintiff] claims only that [the prosecutor] presented
false evidence to the county court, and thereby facilitated the
issuance of the warrant. Such conduct was clearly addressed by the
common law, which immunized a prosecutor, like other lawyers,
from civil liability for making, or for eliciting from witnesses,
false or defamatory statements in judicial proceedings, at least so
long as the statements were related to the proceedings. Moreover,
this immunity extended to any hearing before a tribunal which
performed a judicial function. In addition to such common-law support,
absolute immunity in these circumstances is justified by the policy
concerns articulated in Imbler. [The prosecutor’s] actions clearly
involve his “role as advocate for the State,” rather than his role as
“administrator or investigative officer,” the protection for which the
Court reserved judgment in Imbler.
Burns, 500 U.S. at 479 (citations omitted)(quoting Imbler, 424 U.S. at 430-431).
Smith is entitled to immunity with respect to Franklin’s claims concerning evidence
submitted to the grand jury and, to the extent he raises it in later submissions, with respect to any
claims concerning evidence submitted, or not submitted, at Franklin’s criminal trial. Though
Franklin references “gathering” of evidence by Smith, Smith has submitted an affidavit stating
that he was not involved in any evidence-gathering, nor did he give any legal advice to the
investigators. Document No. 32-7, p. 1. Franklin’s submissions do not dispute those portions of
Smith’s affidavit. Franklin has made nothing more than bare assertions that Smith was involved
in the investigation and knowingly presented false statements. Smith has presented evidence to
the contrary which Franklin has not addressed. Smith has met his burden, and Franklin has
presented no evidence to demonstrate that Smith was acting outside the scope of his
prosecutorial immunity. See, e.g., Hoog-Watson v. Guadalupe County, 591 F. 3d. 431, 436 n.6
3
(5th Cir. 2009).
In his complaint, and in subsequent filings, Franklin admits that there was probable cause
to arrest him for domestic violence. Docket No. 1, p. 4; Docket No. 56, p. 4. Franklin’s dispute
is not with the fact that he was arrested, but with the specific charges brought, a matter within the
prosecutor’s duties and for which he is immune. See, e.g., Hill v. City of Seven Points, 31 Fed.
Appx. 835, * 10 (5th Cir. 2002) ; Forman v. Ours, 996 F.2d 306 (5th Cir. 1993)(prosecutorial
immunity applies to decision whether to file charges).
The only claim against Smith which may not directly involve his role as advocate for the
State is Franklin’s claim that Smith made defamatory remarks to the media. Smith contends that
he is entitled to qualified immunity with respect to Franklin’s claims concerning his statements
to the media, because his actions did not violate a clearly established federal right of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Damage to reputation alone is not actionable in the Section 1983 context. Paul v. Davis,
424 U.S. 693 (1976); Geter v. Fortenberry, 849 F.2d 1550, 1556-57 (5th Cir. 1988). Franklin
claims that Smith’s remarks to the media regarding a “porno” sex tape4 allegedly found in his
home, as well as Smith’s alleged statements to the media that Franklin had 11 convictions when
he only had one, that there were “dead bodies” found on his property when they were five miles
away, and that Franklin was a dangerous serial killer, might taint the jury pool. However,
Plaintiff was not convicted of the rape or sexual battery charges, and it does not appear that he
suffered any injury due to the above-referenced statements alone. Though the jury did hang on
4
Franklin asserts that Smith’s statement was false because the tape was not “porno,” but
was “a Latin tour guide tape for American men wanting to meet exotic women.”
4
the rape charge, any conclusion that Franklin was not acquitted just because of Smith’s media
statements, or that he was convicted of aggravated assault and kidnaping because of the media
statements, would be wildly speculative. In summary, Franklin has not demonstrated the loss of
a protected right or interest, see, e.g., Lyle v. Dedeaux, 39 F.3d 320, *6 (5th Cir. 1994), or any
injury due to the allegedly defamatory statements themselves.5 Accordingly, Smith is entitled to
qualified immunity with respect to Franklin’s claim concerning Smith’s media statements.
Additionally, Franklin’s specific claim is that the allegedly false statements may have
tainted the jury pool, Docket No. 1, p. 5, which brings into question the validity of his
convictions for aggravated assault and kidnaping, and therefore raises the Heck bar issue.
Similarly, Franklin also claims that he has been falsely imprisoned due to the actions of Smith.
Though at trial Franklin was not convicted of two of the four charges stemming from the same
incident, Franklin was convicted of kidnapping and aggravated assault.
At the Spears hearing, Franklin made it clear that he was seeking release from custody by
virtue of this suit,6 in addition to his damages claims. There are two hurdles Franklin cannot
overcome and which block his claims against all Defendants. First, a petition for habeas corpus
is the exclusive remedy for a prisoner challenging the fact or duration of confinement, Preiser v.
Rodriguez, 411 U.S. 475 (1973). Secondly, Franklin’s damages claims in this lawsuit
5
In his complaint Franklin references the “false charges” having cost him his marriage,
his job, his credit rating, his home, his truck..., Docket No. 1, pp. 4-6, but as will be addressed
infra, his having been arrested and incarcerated as a result of the charges raises the Heck bar
issue. Franklin does not attribute his losses to the statements but to the charges themselves.
6
The complaint states that Franklin seeks dismissal of the two charges of which he was
later convicted, and credit for time served for domestic violence, indicating that he intended to
be released upon prevailing in the lawsuit. Docket No. 1, p.4.
5
necessarily impugn his convictions, and therefore, to recover damages, he must demonstrate that
his convictions no longer stand. Heck v. Humphrey, 512 U.S. 477 (1994). Franklin’s claims for
damages are Heck-barred since finding that Franklin was falsely arrested or imprisoned would
necessarily invalidate his aggravated assault and kidnaping convictions as all four charges
stemmed from the same incident–an altercation between Franklin and a female. See Connors v.
Graves, 538 F.3d 373 (5th Cir. 2008).
B. CLAIMS AGAINST PITTMAN
Defendant Pittman is an investigator with the Hinds County Sheriff’s Department.
Docket No. 41-7. Franklin claims that Pittman “is at the core of all of this false material that has
no merit (or) substance by and through her false statements and trumped up evidence the
petitioner has suffered greatly by restriction of his life and liberty and loss of his livilihood [sic]
and family by recent divorce.” Docket No. 1., p. 4.
Pittman is entitled to qualified immunity unless she violated clearly established rights of
which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 814
(1982). Plaintiff contends that Pittman’s involvement in the investigation was wrongful.
However, the alleged victim of Franklin’s crimes reported the crimes, gave a statement, and
signed four affidavits against him. See Docket No. 41-2, p. 2; Docket No. 41-3, pp. 2-5.
Further, Franklin admits he was involved in a physical altercation with the alleged victim on the
date in question, but contends that the “adult” activity was consensual. Docket No. 1, p.6,
Docket No. 33, p. 1. The Court can only surmise that Franklin’s contention is that Pittman
should not have believed the victim as to whether she voluntarily engaged in “adult” activity
with Franklin and as to the extent of the physical altercation.
6
However, the facts were brought before a judge, who found probable cause and issued
warrants. Docket No. 41- 4, pp. 2-5. Subsequently evidence was presented to the grand jury,
and the grand jury indicted Franklin. Docket No. 41-8, pp. 2-5. Significantly, Defendant
Pittman did not testify before the grand jury. Docket No. 41-7. The probable cause
determination of the judge and the grand jury relieve Pittman of liability, unless Franklin can
show that Pittman’s actions tainted the decisions made by the intermediaries. Jennings v.
Patton, 644 F. 3d 297, 301 (5th Cir. 2011). Plaintiff has failed to make any such showing. In
fact, Franklin’s allegations against Pittman are merely conclusory and do not, even when taken
in a light most favorable to him, survive Pittman’s motion. See, e.g., Geter, 849 F. 2d at 1553.
In one filing with the Court, Docket No. 33, Franklin makes the same allegation against
Pittman with respect to the movie which he contends was a “Latin tour DVD” that he makes
against Smith–that Pittman told the media it was “porno.” For the same reasons that allegation
does not state a claim against Smith, it does not state a claim against Pittman.7
Additionally, as noted supra, a win for Franklin as to his claims against Pittman would
undermine his convictions of kidnaping and aggravated assault. Therefore, those claims are
Heck- barred.
7
In a letter he wrote the Court, Franklin makes one other allegation against Defendant
Pittman. Docket No. 12. In the letter Franklin states that Pittman has been intercepting his mail,
but he provides no specifics. Franklin has not, however, moved to amend his complaint and did
not testify regarding any mail incident at his Spears hearing. Therefore, this claim is not before
the Court. Moreover, conclusory allegations do not create an issue of fact. See, e.g., Porter v.
Farris, 328 Fed. Appx. 286 *2 (5th Cir. 2009).
7
C. CLAIMS AGAINST MCMILLIN
Former Sheriff McMillin could only be held liable if he personally participated in the
alleged wrongdoing or, as a supervisor if there was a causal connection between his acts and the
alleged civil rights violations. See, e.g., Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Gilmer
v. Towbridge, 2009 WL 649692 (S.D. Miss. March 10, 2009). Franklin’s allegations against
McMillin are as conclusory as those made against Pittman. The complaint merely states that
“Sheriff McMillian [sic] and Mrs. Rebecca Pittman are both accused for false imprisonment, and
acting on tainted information released to him by Mrs. Rebecca Pittman and info released by the
district attorney.” Docket No. 1, p. 5. Franklin has provided no facts supporting these claims in
any of his submissions to the Court. Franklin’s claims against McMillin do not survive
summary judgment. See Geter, 849 F. 2d at 1559 (“conclusory allegations without the leaven of
confirming factual details” do not survive).
III. CONCLUSION
Based on the foregoing, the Court grants Defendants’ Motions for Summary Judgment
and dismisses Plaintiff’s complaint with prejudice.
SO ORDERED, this the 23rd day of March, 2012.
s/ F. Keith Ball________________________
UNITED STATES MAGISTRATE JUDGE
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