Winding v. Sanders et al

Filing 77

ORDER finding as moot 28 Motion to Appoint Counsel ; finding as moot 29 Motion to Amend/Correct; finding as moot 30 Motion ; finding as moot 31 Motion for Default Judgment; granting 36 Motion to Dismiss; finding as moot 40 Motion to Appoint Counsel ; granting 41 Motion to Dismiss; granting 44 Motion to Dismiss; denying 46 Motion ; finding as moot 49 Motion to Strike ; finding as moot 50 Motion for Partial Summary Judgment; finding as moot 51 Motion for Sanctio ns; finding as moot 52 Motion for Entry of Default; finding as moot 53 Motion ; denying 54 Motion ; denying 55 Motion ; finding as moot 56 Motion for Sanctions; finding as moot 57 Motion ; finding as moot 58 Motion ; adopting Rep ort and Recommendations re 70 Report and Recommendations.; finding as moot 73 Motion ; denying 74 Motion ; denying 75 Motion ; granting 12 Motion to Dismiss; denying 14 Motion ; denying 15 Motion ; denying 16 Motion ; finding as moot 18 Motion to Compel; finding as moot 25 Motion to Strike ; denying 26 Motion to Amend/Correct Signed by Honorable David C. Bramlette, III on 3/6/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JAMES WINDING,

#K8115

PLAINTIFF

VS.

CIVIL ACTION NO. 5:12-cv-88(DCB)(JMR)

LILLIE BLACKMON SANDERS;
ADAMS COUNTY JAIL; CRAIG GODBOLD;
KEVIN COLBERT; NATCHEZ POLICE DEPARTMENT;
CHRISTOPHER EPPS; and RONNIE HARPER

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on Motions to Dismiss filed by
defendants Adams County Jail [12]; City of Natchez, Mississippi,
Police

Department

(“Natchez

PD”)

and

Craig

Godbold

[36];

Christopher Epps, Ronnie Harper, and Lillie Blackmon Sanders [41];
and Kevin Colbert [44].

Also before the Court are the plaintiff

James Winding’s Motions to Amend to Add New Defendants [14, 15];
Motion to Amend to Add New Relief Sought [16]; Motion to Compel
Issuance of Summonses [18]; Motions to Strike the Motion to Dismiss
filed by Adams County Mississippi, and to Amend Complaint [25, 26];
Motions to Appoint Counsel [28, 40]; Motion to Amend/Correct Notice
of

Removal

[29];

Motion

to

Mississippi

[30];

Motion

for

Amend

and

Default

Submit

Judgment

Adams

County,

against

Kevin

Colbert, Craig Godbold and Natchez PD [31]; Motion to Supplement
Kidnapping Charge [46]; Motion to Strike the defendants’ Motions to
Dismiss [49]; Motion for Partial Summary Judgment [50]; Motion for
Sanctions against defendant Kevin Colbert [51]; Motion for Entry of

Default against defendant Kevin Colbert [52]; Motion to Submit NCIS
Report [53]; Motion to Bring Claim of Malicious Prosecution [54];
Motion to Bring Claim of Conspiracy [55]; Motion for Sanctions
against all defendants [56]; Motion to Submit Letter from NAACP
[57]; and Motion to Request Jury Trial [58].
On October 29, 2012, Chief Magistrate Judge John M. Roper
entered a Report and Recommendation [70], and on November 9, 2012,
the plaintiff entered Objections thereto.

On the same day, the

plaintiff filed a Motion to Re-Open All Motions with Written
Opinions [73], a Motion to Supplement his Objections [74], and a
Second Motion to Supplement his Objections [75].

Having carefully

considered the above pleadings and the Report and Recommendation,
and being fully advised in the premises, the Court finds as
follows:
The plaintiff filed this action in the Circuit Court of Hinds
County, Mississippi, on May 21, 2012, and it was removed to this
Court. On September 24, 2003, Winding was convicted in the Circuit
Court of Adams County, Mississippi, on charges of kidnapping and
sexual battery.
2005).

Winding v. State, 908 So.2d 163, 164 (Miss. App.

According to Winding, he was never arrested, fingerprinted

or booked on a charge of sexual battery, only on the kidnapping
charge.

He contends that he is a victim of unlawful arrest and

that he is entitled to damages for this claim.

Winding asserts

that he can maintain a cause of action under § 1983 for illegal
2

arrest and detention.
Adams County asserts that the statute of limitations has run
on any claims Winding might advance relating to the September 24,
2003, conviction.

Adams County also asserts that Winding’s claims

are barred under Heck v. Humphrey, 512 U.S. 477 (1994). Natchez PD
asserts

that

it

cannot

be

sued

as

a

party,

since

a

police

department is not a separate legal entity aside from the City
itself which is subject to suit.

In addition, Natchez PD and

Godbold assert that they are entitled to dismissal under Heck v.
Humphrey

because

Winding

cannot

challenge

the

validity

of

a

criminal conviction in a civil suit brought under 42 U.S.C. § 1983.
See Collins v. Ainsworth, 177 Fed. Appx. 377, 379 (5th Cir. 2005).
Christopher Epps (Commissioner of the Mississippi Department of
Corrections), District Attorney Ronnie Harper, and Circuit Court
Judge Lillie Blackmon-Sanders also assert that the claims brought
against them should be dismissed under Heck v. Humphrey.

These

defendants also argue that Winding’s claims brought under § 1983
are barred by the general three-year statute of limitations under
Mississippi Code Annotated § 15-1-49.

Finally, these defendants

assert that the claims against Harper and Blackmon-Sanders are
barred by absolute immunity.

Attorney Kevin Colbert moves for

dismissal, asserting that he did not act “under color of state law”
when he represented Winding as an indigent defendant in Winding’s
criminal trial.

3

Winding alleges that all named defendants conspired together
to place him in prison on a sexual battery charge based on a
“nonexistent federal NCIC report.”

He claims that Adams County

Jail’s contentions concerning the applicability of Heck v. Humphrey
to this case “fall short” because he was never charged for sexual
battery and should never have been convicted or sentenced on that
charge.
Under Fed.R.Civ.P. 12(b), all allegations in the complaint are
accepted as true and all inferences are drawn in favor of the nonmoving party.

Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th

Cir. 2010). Those facts, “taken as true, [must] state a claim that
is plausible on its face.” Amacker v. Renaissance Asset Mgmt. LLC,
657 F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility
when the pleaded factual content allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

In his Report and Recommendation, Magistrate Judge Roper
explains that federal law opens two main avenues to relief on
complaints related to imprisonment: a petition for habeas corpus,
28 U.S.C. § 2254, and a complaint under the Civil Rights Act of
1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.
Muhammad v. Close, 540 U.S. 749, 751 (2004).

See

Where the success in

a prisoner’s § 1983 damages action would implicitly question the
validity of his conviction or duration of his sentence, the

4

litigant must first achieve favorable termination of his available
state, or federal habeas, opportunities to challenge the underlying
conviction or sentence.

See Heck, 512 U.S. at 486-7.

Winding

already sought this relief, and his petition was denied in Winding
v. King, et al., Civil Action No. 5:5-cv-178(DCB)(MTP), Final
Judgment of July 3, 2007 (docket entry 54).
Winding contends that he is entitled to bring an action under
§ 1983 for his “illegal arrest and detention.”

He claims that he

was never charged with sexual battery, so that there should not
have been a conviction or sentence imposed for this crime.

This

allegation does not challenge a condition of Winding’s confinement,
but challenges the fact that he is actually confined under that
charge.

Although brought as a § 1983 claim, Winding’s claims were

properly brought in his petition for habeas corpus.

Under Heck v.

Humphrey, when a state prisoner brings a § 1983 suit based on his
conviction, the Court must first determine if a judgment in favor
of the plaintiff in the § 1983 action would imply that the
conviction or sentence was invalid.

Heck, 512 U.S. at 486.

If so,

the plaintiff must show that his conviction was reversed on direct
appeal, expunged by executive order, invalidated by other state
means, or called into question by the issuance of a federal habeas
writ.

Heck, 512 U.S. at 486-7; Penley v. Collin County, Tex., 446

F.3d 572, 573 (5th Cir. 2006).
A false arrest is a form of false imprisonment, which requires

5

“detention without legal process.”
388-89 (2007).

Wallace v. Kato, 549 U.S. 384,

Because an essential element of Winding’s claim in

this case is that the arrest/imprisonment was illegal or without
legal authority, granting relief on his claim would necessarily
imply the invalidity of Plaintiff’s convictions.
L.L.C.

v.

Hilton,

568

F.3d

181,

204

n.18

See Club Retro,
(5th

Cir.

2009).

Accordingly, Winding’s claims for damages are Heck-barred since a
finding that he was falsely arrested or imprisoned on the sexual
battery charges would invalidate his conviction on that charge
which stemmed from the same incident.
F.3d 373, 378 (5th Cir. 2008).

See Connors v. Graves, 538

In addition, Winding has not

demonstrated that his convictions or sentences were reversed,
invalidated, or expunged by his habeas petition prior to bringing
this suit under § 1983.
Cir. 1996).

See Hamilton v. Lyons, 74 F.3d 99, 103 (5th

Magistrate Judge Roper therefore recommends that

Winding’s claims be dismissed.
The Report and Recommendation further finds that even if
Winding’s claims were not barred under Heck v. Humphreys, the
claims would fail for other reasons.

First, the claims are barred

by the statute of limitations. The Supreme Court has held that the
statute of limitations for a § 1983 action is the same as the
statute of limitations in a personal injury action in the state in
which the claim arose.

Wilson v. Garcia, 471 U.S. 261, 279–80

(1984); Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th

6

Cir. 1995).

The relevant limitations period in Mississippi is

three years from the date the cause of action accrues.

Miss. Code

Ann. § 15-1-49 (2003); see also James v. Sadler, 909 F.2d 834, 836
(5th Cir. 1990)(in § 1983 suit, finding “the three year residual
period provided by Section 15-1-49, Miss. Code Ann. applies”).
Winding complains that he was falsely accused, arrested on false
accusations, and ultimately unlawfully imprisoned.

See Perry v.

Holmes, 152 F. Appx. 404, 405 (5th Cir. 2005)(false imprisonment
claims barred by Heck); accord Wallace, 549 U.S. at 393-94 (holding
that Heck does not apply to anticipated convictions but stating in
dictum that a false imprisonment claim which impugns a conviction
would be barred by Heck).

When an arrest is followed by criminal

proceedings, the statute of limitations for claims for false arrest
“begins to run at the time the claimant becomes detained pursuant
to legal process,” not when the criminal prosecution terminates in
favor of the accused.

Wallace v. Kato, 549 U.S. 384, 396 (2007);

Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).
In this case, Winding was arrested in September of 2002.
Winding, 908 So.2d at 167.

A timely filed action under § 1983

based on this arrest would have to be brought by September 2005.
This lawsuit was filed May 12, 2012, nearly seven years following
the running of the statute of limitations. Thus, this suit must be
dismissed as barred by the statute of limitations.
The claims against the remaining defendants are likewise

7

insufficient.

Section

1983

does

not

create

supervisory

or

respondeat superior liability for supervisory officials such as the
Commissioner of the Mississippi Department of Corrections.

In

addition, the Eleventh Amendment bars official-capacity claims for
money damages against prison officials.
736, 742 (5th Cir. 2002).

Oliver v. Scott, 276 F.3d

Winding’s claims against Epps in his

official capacity are barred under these principles.

In addition,

any claims against Epps acting in his individual capacity are
barred because Winding has not identified any specific policies
implemented

by

Epps

which

caused

the

alleged

constitutional

violation, see Jolly v. Klein, 923 F. Supp. 931, 943 (S.D. Tex.
1996), and Winding has not alleged that Epps was personally
involved in the alleged constitutional violation.

See Murphy v.

Kellar, 950 F.2d 290, 292 (5th Cir. 1992).
Claims against Judge Lillie Blackmon-Sanders and District
Attorney Ronnie Harper are barred by the doctrine of absolute
immunity, which confers full exemption from liability to, inter
alia, judges performing judicial acts within their jurisdiction,
and prosecutors in the performance of their official functions.
Yaselli v. Goff, 275 U.S. 503 (1927); O’Neal v. Mississippi Bd. of
Nursing, 113 F.3d 62, 65 (5th Cir. 1997).

The Court finds that the

claims against Blackmon-Sanders and Harpers must be dismissed.1

1

In his objections to the Report and Recommendation,
Winding concedes to the dismissal of Blackmon-Sanders.
Objections, p. 6.
8

As for the claims against the Adams County Jail and the
Natchez PD, municipal liability under § 1983 requires proof of
three elements: a policymaker, an official policy, and a violation
of constitutional rights whose “moving force” is the policy or
custom.

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.

2001); Monell v. Dep’t of Soc. Services, 436 U.S. 658, 694 (1978).
Not only must Winding establish that a policy or custom of the
municipality was the “moving force” behind the alleged violation of
a

constitutional

municipality

was

right;

he

must

“deliberately

consequences of the policy.

also

establish

indifferent”

to

that

the

the

known

Piotrowski, 237 F.3d at 580.

As set

forth in the Report and Recommendation, Winding fails to allege
that the existence of an official policy caused a violation of his
constitutional rights.

Furthermore, he has failed to allege any

misconduct on the part of the Adams County Jail or the Natchez PD,
and does not state a claim under § 1983 against either defendant.
Finally, all claims against Kevin Colbert must be dismissed
because a public defender does not act under color of state law
when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding.

Polk County v. Dodson, 454

U.S. 312, 325 (1981).2
None

of

Winding’s

claims

challenge

2

a

condition

of

his

In his objections to the Report and Recommendation,
Winding concedes to the dismissal of Colbert. Objections, p. 8.
9

confinement; rather, his complaint challenges the fact that he is
actually confined.

Thus, his claims must be dismissed for failing

to first achieve favorable termination of his available state or
federal habeas opportunities challenging his underlying conviction.
Alternatively, analyzing his claims under § 1983 jurisprudence
reveals that Winding fails to meet his burden of establishing
claims against the Adams County Jail, the Natchez PD, Craig
Godbold, Christopher Epps, Ronnie Harper, Lillie Blackmon-Sanders,
and Kevin Colbert.
Winding seeks to amend his complaint to add as defendants “Jim
Hood [Attorney General of the State of Mississippi], Governor P.
Bryant, State Hospital, F.B.I. and State of Mississippi,” Motion to
Amend (docket entry 14), and to add “public defender David Reed.”
Motion to Amend (docket entry 15). Because the plaintiff’s motions
fail to state a claim against any of the proposed defendants, it
would be futile to allow plaintiff leave to amend.
Winding also seeks to amend his complaint to add a request for
additional relief. Motion to Amend (docket entry 16). Inasmuch as
the plaintiff has failed to state a claim, an amendment to add a
prayer for additional relief would be futile.

The plaintiff also

seeks to add a claim of “unlawful arrest” against the Adams County
Jail. Motions to Amend (docket entries 25, 26). The plaintiff has
failed to provide any legal basis for this claim, and the motions
shall therefore be denied.

10

Winding also seeks to bring federal criminal charges against
the defendants for kidnapping.
46).

Motion to Supplement (docket entry

The Court is without jurisdiction to grant this sort of

relief.

See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990).

Finally, the plaintiff seeks to add claims of malicious prosecution
(Motion to Bring Claim, docket entry 54) and conspiracy (Motion to
Bring Claim, docket entry 55) against the defendants.

To the

extent that the plaintiff is seeking to add state law claims, the
Court finds that all the plaintiff’s federal claims must be
dismissed with prejudice, and therefore declines to entertain any
state law claims against the defendants.

Insofar as the plaintiff

is asserting alternative grounds for relief under § 1983, he fails
to show that he is entitled to any relief for the reasons set forth
in the Report and Recommendation.

The motions to bring additional

claims shall therefore be denied.
The Report and Recommendation also addresses a number of
procedural motions filed by the plaintiff, all of which are moot in
light of the disposition of this case and shall therefore be denied
as moot.
The plaintiff’s objections to the Report and Recommendation
include allegations that he was prevented from filing a § 1983
action because of an injury to his hand in October of 2004.
produced medical records verifying the injury.

He has

He fails, however,

to support his allegations with any facts showing how he was

11

prevented from filing a § 1983 action. Moreover, as the Report and
Recommendation explains, the plaintiff’s claims are habeas in
nature.

Winding has already sought, and been denied, habeas

relief.

The remainder of the plaintiff’s objections are without

merit for the reasons set forth in the Report and Recommendation.
After an independent review of the Report and Recommendation
and the record, including the plaintiff’s objections, the Court
concurs with the findings of the Magistrate Judge and finds that
this action shall be dismissed with prejudice.

Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation [70]
of Cheif Magistrate Judge John M. Roper is ADOPTED as the findings
and conclusions of this Court;
FURTHER ORDERED that all the plaintiff’s Objections, including
his Motion to Supplement Objections [74], and Second Motion to
Supplement Objections [75] are DENIED, and his Motion to Re-Open
All Motions with Written Opinions [73] is DENIED AS MOOT;
FURTHER

ORDERED

that

the

Motions

to

Dismiss

filed

by

defendants Adams County Jail [12]; City of Natchez, Mississippi,
Police Department and Craig Godbold [36]; Christopher Epps, Ronnie
Harper, and Lillie Blackmon Sanders [41]; and Kevin Colbert [44]
are GRANTED, and said defendants shall be dismissed with prejudice;
FURTHER ORDERED that the plaintiff’s Motions to Amend to Add
New Defendants [14, 15] and Motion to Amend to Add New Relief
Sought [16] are DENIED;
12

FURTHER

ORDERED

that

the

plaintiff’s

Motions

to

Amend

Complaint [25, 26], Motion to Supplement Kidnapping Charge [46],
Motion to Bring Claim of Malicious Prosecution [54], and Motion to
Bring Claim of Conspiracy [55] are DENIED;
FURTHER ORDERED that the plaintiff’s Motion to Compel Issuance
of Summonses [18]; Motions to Strike the Motion to Dismiss filed by
Adams County Mississippi, and to Amend Complaint [25, 26]; Motions
to Appoint Counsel [28, 40]; Motion to Amend/Correct Notice of
Removal [29]; Motion to Amend and Submit Adams County, Mississippi
[30]; Motion for Default Judgment against Kevin Colbert, Craig
Godbold and Natchez PD [31]; Motion to Strike the defendants’
Motions to Dismiss [49]; Motion for Partial Summary Judgment [50];
Motion for Sanctions against defendant Kevin Colbert [51]; Motion
for Entry of Default against defendant Kevin Colbert [52]; Motion
to Submit NCIS Report [53]; Motion for Sanctions against all
defendants [56]; Motion to Submit Letter from NAACP [57]; and
Motion to Request Jury Trial [58] are DENIED AS MOOT.
A Final Judgment dismissing this action with prejudice shall
issue forthwith.
SO ORDERED, this the 6th day of March, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

13