Lenard et al v. State of Mississippi et al
Filing
32
ORDER denying 31 Motion for Hearing; denying 31 Motion for Summary Judgment; adopting Report and Recommendations re 25 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 8/9/2013 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
WALTER G. LENARD
and RUSELL CHANEY
PLAINTIFFS
VS.
CIVIL ACTION NO. 5:11-cv-120(DCB)(JMR)
CITY OF YAZOO CITY, MISSISSIPPI, et al.
DEFENDANTS
ORDER
This
cause
is
before
the
Court
on
the
Report
and
Recommendation of Chief Magistrate Judge John M. Roper (docket
entry 25), and on the Motion for Evidentiary Hearing / Motion for
Summary Judgment filed by the plaintiffs Walter G. Lenard and
Rusell Chaney (docket entry 31). Having carefully considered same,
and being fully advised in the premises, the Court finds as
follows:
The plaintiffs filed their Complaint pursuant to 42 U.S.C. §
1983 on August 11, 2011.
The defendants are City of Yazoo City,
Mississippi; Susie Bradshaw; James Powell; Steven Waldrup; Erick
Snow; Larry Davis; Clifton Tillman; Richard Rodhman and Harrell
Stansberry.
The plaintiffs filed a motion for service of process
on June 25, 2012 (docket entry 14).
Magistrate
recommending
Judge
prejudice.
that
Roper
filed
his
this
action
be
On February 20, 2013,
Report
and
dismissed
Recommendation
sua
sponte
with
On March 14, 2013, the Court denied the plaintiffs’
motion for service of process without prejudice in the event the
plaintiffs are allowed to proceed with this lawsuit.
On March 13, 2013, the plaintiffs filed a motion for extension
of time to file their objections to the Report and Recommendation.
The
motion
was
granted;
however,
instead
of
objections
the
plaintiffs filed a Motion for Evidentiary Hearing / Motion for
Summary Judgment (docket entry 31).
The Complaint in this action alleges that the defendants
conspired to falsely accuse plaintiff Lenard of a crime and to have
him murdered, and to have plaintiff Chaney imprisoned.
Since the
Complaint is filed in federal court and seeks damages from state
officials for violations of civil rights, the Court assumes that
the plaintiffs are proceeding under 42 U.S.C. § 1983. Section 1983
provides that
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any citizen of the United
States ... to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress....
42 U.S.C. § 1983.
In a Memorandum Opinion and Order filed September 18, 2012,
(docket entry 19) this Court found that the plaintiffs had failed
to furnish the Court with proof of service of process on any of the
defendants. On February 1, 2013, Magistrate Judge Roper entered an
Order (docket entry 20) allowing the plaintiffs to amend their
complaint to add defendants Hattie Williams, an alderman in Yazoo
2
City, and Noreen Garrard, a former Chancery Clerk of Yazoo County.
The deadline for amending the complaint was March 1, 2013 (docket
entry
20).
To
date,
the
plaintiffs
have
not
amended
their
complaint.
On February 20, 2013, Magistrate Judge Roper entered his
Report and Recommendation, finding that the plaintiffs also seek to
add as defendants the Yazoo City Police Department and the Bank of
Yazoo.
In addition, the Report and Recommendation finds that
plaintiff Lenard previously filed a lawsuit in this Court against
Steven Waldrup, et al. (5:06-cv-176(DCB)(MTP)), which was dismissed
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), on September 26,
2007.
That suit was based on Lenard’s arrest on May 25, 2006, for
violating his probation.
Lenard contended that he was falsely,
maliciously and intentionally arrested on a perjured warrant, and
that Waldrup and Garrard, along with others, were involved in a
conspiracy which resulted in his revocation and imprisonment.
In the present suit, the plaintiffs sue the defendants for
“their role in the false imprisonment of” Lenard in May of 2006,
and for their role in violating the civil rights of the plaintiffs
“by their actions and inactions when they conspired one with the
other” to “deny plaintiffs access to the courts;” “obstruction of
justice;” “false imprisonment;” “conspiracy to deny the plaintiffs
due process of law;” “deny plaintiffs equal protection of the law;”
“subverting due process of the courts with perjury knowingly,
3
willingly, intentionally given to stimulate the process of the
courts;” and “violation of the civil rights of the plaintiffs by
employing hit man Ben Reed to murder [Lenard] and to imprison
[Chaney].” Complaint, p. 4. These same allegations (as to Lenard)
formed the basis of the complaint in Lenard v. State, 5:06-cv176(DCB)(MTP).
Magistrate Judge Roper recommends sua sponte dismissal of
plaintiff Lenard’s claims pursuant to Boone v. Kurtz, 617 F.2d 435,
436 (5th Cir. 1980)(allowing “[d]ismissal by the court sua sponte
on res judicata grounds ... in the interest of judicial economy
where both actions were brought before the same court”).
Both the
2006 action and the present case were brought in the same federal
district court.
In addition, the two cases are almost identical,
differing only in the defendants’ names and the fact that Russell
Chaney is a named plaintiff in the present action.
Lenard had a full and fair opportunity to raise his claims in
the previous federal suit.
That suit was found barred by Heck v.
Humphrey, and the same principal applies in this case because
Lenard has failed to show that the conviction that formed the basis
of this suit and the previous suit was overturned.
The only allegations in the complaint concerning Chaney are
that defendants Bradshaw and Stansberry conspired to prevent him
from qualifying to run for mayor by altering the voter registration
book (Complaint, pp. 3-4), that defendant Bradshaw refused to issue
4
service of process in a suit filed by Chaney in May of 2005 (id. at
5), and that all defendants employed a “hit man” to imprison
Chaney.
Id. at 4.
Vague allegations of conspiracy are inadequate
to raise a claim against the defendants.
See Tapia-Oritz v.
Winter, 185 F.3d 8, 11 (2nd Cir. 1999)(affirming a district court’s
sua sponte dismissal of a complaint filed against circuit judges
because
there
conspiracy).
had
been
no
facts
alleged
to
establish
any
Furthermore, such vague and conclusory allegations
unsupported by material facts are not sufficient to state a claim
under § 1983.
Gutierrez v. Lynch, 826 F.2d 1534, 1539 (6th Cir.
1987).
Title 28 U.S.C. Section 1915 (“Proceedings in forma pauperis”)
provides, in relevant part:
Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case
at any time if the court determines that (A) the allegation of poverty is untrue; or
(B) the action or appeal (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).
The statute accords judges the authority
to dismiss a claim at any time, “based on an indisputably meritless
legal theory,” and also “the unusual power to pierce the veil of
5
the complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.”
490 U.S. 319, 327 (1989).
Neitzke v. Williams,
“A district court may dismiss an in
forma pauperis proceeding as frivolous ... whenever it appears that
the claim’s realistic chance of ultimate success is slight or the
claim has no arguable basis in law or fact.”
923 F.2d 51, 53 (5th Cir. 1991).
Henson-El v. Rogers,
In addition, a federal court “may
consider, sua sponte, affirmative defenses that are apparent from
the record even where they have not been addressed or raised in the
pleadings on file.”
1990).
Ali v. Higgs, 892 F.2d 438, 440 (5th Cir.
“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.
Since both
plaintiffs were granted in forma pauperis status, § 1915(e)(2)
applies to this case.
Although the plaintiffs’ pro se civil rights complaint is to
be construed liberally and its well-pleaded allegations accepted as
true, it “must set forth facts giving rise to a claim on which
relief may be granted.”
Johnson v. Atkins, 999 F.2d 99, 100 (5th
Cir. 1993). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)(complaint must contain “enough facts to state a claim to
relief that is plausible on its face”); Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
6
inference
that
alleged.”).
the
defendant
is
liable
for
the
misconduct
A district court may also sua sponte dismiss a
complaint as frivolous on statute-of-limitations grounds, if it is
clear from the face of the complaint that the claims are timebarred. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Here,
the events that form the basis of the plaintiffs’ complaint
occurred in late 2005 or early 2006.
In § 1983 suits, the federal
court borrows the forum state’s general or residual personal injury
limitations period, which in Mississippi is three years.
See
Gartrell v. Gaylor, 981 F.2d 254 (5th Cir. 1993); Miss. Code Ann.
§ 15-1-49.
Thus, the complaint must also be dismissed for failure
to state a claim and on statute of limitations grounds.
The
plaintiffs’ motion for evidentiary hearing / motion for summary
judgment shall also be denied.
Since this case will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B),
plaintiffs.
it
will
be
counted
as
a
“strike”
as
to
both
When a plaintiff receives “three strikes,” he will be
denied in forma pauperis status and will be required to pay the
full filing fee to file a civil action or appeal.
Pursuant to 28 U.S.C. § 1915(g), plaintiff Lenard has already
accrued one strike against him for filing frivolous actions.
See
Lenard v. Mississippi, 2007 WL 2873140 (S.D. Miss. Sep. 26, 2007)
(5:06-cv-176(DCB)(MTP)).
Lenard is warned that if he accumulates
a third strike, then he may not proceed IFP in any civil action or
7
appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
As for plaintiff Chaney, this is his first strike.
He is
likewise warned that if he accumulates three strikes, then he may
not proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury.
1915(g).
See 28 U.S.C. §
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of
Chief Magistrate Judge John M. Roper (docket entry 25) is hereby
ADOPTED as the findings of this Court, and this action shall be
dismissed with prejudice as frivolous under 28 U.S.C. § 1915(e)(2);
FURTHER ORDERED that the Motion for Evidentiary Hearing /
Motion for Summary Judgment filed by the plaintiffs Walter G.
Lenard and Rusell Chaney (docket entry 31) is DENIED;
FURTHER
ORDERED
that
the
dismissal
of
this
action
with
prejudice as frivolous under 28 U.S.C. § 1915(e)(2) will be counted
as a “Strike” as to both plaintiffs.
A Final Judgment in accordance with this Memorandum Opinion
and Order shall follow.
SO ORDERED, this the 9th day of August, 2013
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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