Williams v. DeVetter et al
MEMORANDUM AND ORDER - Plaintiff's Motion for Extension of Time to Pay Initial Partial Filing Fee (filing no. 13 ) is granted. The Clerk of the court is directed to send a copy of this order to the appropriate official at Plaintiff's in stitution. Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice to reassertion in his criminal appeal or in a habeas corpus or similar proceeding. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed and to Pro se party)(AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN DEVETTER, et al.,
Plaintiff filed his Complaint in this matter on October 18, 2012. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
8.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A. Also
pending is Plaintiff’s Motion for Extension of Time to Pay Initial Partial Filing Fee.
(Filing No. 13.)
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on October 18, 2012, against the “Nebraska U.S.
Marshall Service” and five individual federal officials, including Susan DeVetter
(“DeVetter”), a court reporter for the United States District Court for the District of
Nebraska. (Filing No. 1 at CM/ECF pp. 1-4.) Plaintiff is currently confined in a
United States Penitentiary in Atwater, California. (See Docket Sheet.)
Plaintiff alleges that his Complaint “directly” relates to his criminal proceedings
in United States v. Williams, Case No. 09CR457. (Filing No. 1 at CM/ECF p. 17.)
In United States v. Williams, Senior United States District Court Judge Lyle E. Strom
(“Judge Strom”) sentenced Plaintiff for convictions of money laundering and
conspiracy to distribute and possession with intent to distribute marijuana. (Case No.
09CR457, Filing Nos. 1173 and 1180.) Thereafter, Plaintiff filed a notice of appeal
(case no. 09CR457, filing no. 1177) and a motion for transcripts (case no. 09CR457,
filing no. 1188). The Eighth Circuit docketed Plaintiff’s appeal (case no. 09CR457,
filing no. 1186), and Judge Strom granted Plaintiff’s motion for transcripts as to
transcripts that had not been previously transcribed (case no. 09CR457, filing no.
1195). In doing so, Judge Strom specifically ordered the court reporter to prepare and
furnish a copy of the transcripts from hearings held on December 8, 2010; September
30, 2011; October 11, 2011; and November 4, 2011. (Case No. 09CR457, Filing No.
1195.) The aforementioned transcripts were filed in United States v. Williams on
December 16th and 19th of 2011. (Case No. 09CR457, Filing Nos. 1209, 1212, 1213,
1214, 1215, and 1216.)
In this matter, Plaintiff asserts civil rights claims against Defendants pursuant
to Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971). (Filing No. 1 at
CM/ECF p. 2.) Specifically, Plaintiff alleges that he has been “denied a fair
opportunity to prove his actual innocence” in United States v. Williams because
Defendants have deliberately changed trial transcripts in an effort to “hide and
suppress prosecutorial and judicial misconduct.” (Id. at CM/ECF p. 10.) Plaintiff
asserts that Defendants’ actions are depriving “the appellate court from performing
its task of impartial adjudication.” (Id.) Plaintiff seeks access to audio recordings
from his pretrail and trial proceedings in United States v. Williams so that he can
“correct a ‘manifest injustice.’” (Id. at CM/ECF pp. 17-18.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
A pro se plaintiff must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
DISCUSSION OF CLAIMS
Claims relating to the validity of an individual’s incarceration may not be
brought in a civil rights case, regardless of the relief sought. As set forth by the
Supreme Court in Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey,
512 U.S. 477 (1994), if success on the merits of a civil rights claim would necessarily
implicate the validity of a prisoner’s conviction or continued confinement, the civil
rights claim must be preceded by a favorable outcome in a habeas corpus or similar
proceeding in a state or federal forum. Absent such a favorable disposition of the
charges or conviction, a plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the
legality of his conviction or confinement. See Heck, 512 U.S. at 486-87. Heck also
applies to Bivens actions against federal officials. Washington v. Sorrows, No. 964236, 1997 WL 71670, at *1 (8th Cir. Feb. 21, 1997); see also Taverez v. Reno, 54
F.3d 109, 110 (2d Cir. 1995) (“Given the similarity between suits under § 1983 and
Bivens, we conclude that Heck should apply to Bivens actions as well.”).
As discussed above, Plaintiff asserts Bivens claims against Defendants because
they deliberately changed trial transcripts in an effort to “hide and suppress
prosecutorial and judicial misconduct.” (Filing No. 1 at CM/ECF p. 10.) Because of
this conduct, Plaintiff has been “denied a fair opportunity to prove his actual
innocence” and the Eighth Circuit cannot “perform its task of impartial
adjudication.” (Id.) These allegations necessarily implicate the validity of Plaintiff’s
conviction and sentence in United States v. Williams. As a result, Plaintiff’s claims
must be preceded by a favorable disposition of his conviction and are barred by Heck.
See, e.g., Murphy v. Bloom, 443 Fed. App’x 668, 2011 WL 3837768, at *1 (3d Cir.
Aug. 31, 2011) (concluding plaintiff’s success on claims regarding the alteration of
his trial transcript would necessarily imply the invalidity of his conviction and would
not be cognizable under Heck); Hall v. Woodall, No. 98-5344, 1999 WL 313886, at
*1-2 (6th Cir. May 3, 1999) (finding plaintiff’s claim that defendants “changed the
transcript to ‘favor’ the state” and that the “condition of the transcript interfered with
his right to effective appellate review” was barred by Heck). However, the court will
dismiss Plaintiff’s Complaint without prejudice to reassertion in his criminal appeal
or in a habeas corpus or similar proceeding.
MOTION FOR EXTENSION OF TIME
Also pending is Plaintiff’s Motion for Extension of Time to Pay Initial Partial
Filing Fee. (Filing No. 13.) On January 9, 2013, the court granted Plaintiff’s IFP
Motion and assessed an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).
(Filing No. 8.) In doing so, the court warned Plaintiff that his case would be subject
to dismissal if he failed to pay the initial partial filing fee of $31.00 by February 8,
2013. (Id.) Thereafter, Plaintiff moved for an extension of time to pay the initial
partial filing fee. (Filing No. 9.) The court granted Plaintiff’s Motion for Extension
of Time and gave him until March 8, 2013, to pay the initial partial filing fee. (Filing
No. 10.) On March 14, 2013, Plaintiff filed his current Motion for Extension of Time
to Pay Initial Partial Filing Fee. (Filing No. 13.)
In his Motion, Plaintiff asserts that the Bureau of Prisons already deducted
$8.00 from his account for payment of the initial partial filing fee in this matter, but
did not process the “$25.00 balance.”1 (Id.) Plaintiff “swear[s]” that he sent the
request to the Bureau of Prisons to pay the initial partial filing fee on March 7, 2013.
(Id.) Plaintiff has included a copy of his request. (Id. at CM/ECF p. 3.)
On March 21, 2013, the court received an initial partial filing fee payment of
$25.00 from Plaintiff’s institution. (See Docket Sheet.) However, the court never
received the remaining $6.00 of the $31.00 court ordered initial partial filing fee. (Id.;
Filing No. 8.) Because Plaintiff has failed to pay the full amount of the court ordered
initial partial filing fee, he has failed to comply with this court’s orders. However,
Plaintiff has asserted that his institution previously deducted $8.00 towards the filing
fee in this matter. (See Filing No. 13.) Although the court has not yet received the
$8.00, Plaintiff’s Motion for Extension of Time to Pay Initial Partial Filing Fee (filing
no. 13) is granted and the remainder of Plaintiff’s filing fee, including the remaining
$6.00 of his initial partial filing fee, shall be collected in accordance with the court’s
January 9, 2013, Memorandum and Order.2
IT IS THEREFORE ORDERED that:
Plaintiff’s Motion for Extension of Time to Pay Initial Partial Filing Fee
(filing no. 13) is granted.
Plaintiff’s proposed initial partial filing fee equals $33.00 (i.e. the $8.00
already deducted by his institution and his stated $25.00 balance), which is $2.00
more than the court-imposed $31.00 initial partial filing fee. (Filing No. 8 at CM/ECF
The court notes that Plaintiff has additional cases pending before this court.
(See, e.g., Case No. 11CV446.) The court warns Plaintiff that his failure to timely
comply with court orders will not be tolerated and could result in the dismissal of his
The Clerk of the court is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution.
Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice to
reassertion in his criminal appeal or in a habeas corpus or similar proceeding.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 8th day of April, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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