Marshall v. Lombardi et al
Filing
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OPINION AND ORDER by Judge Stephen P Friot Clerkt to flag "prior Occasion" ; dismissing/terminating case ; finding as moot 8 Motion for Issuance; finding as moot 9 Motion for Appointment of Counsel (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BILLY GENE MARSHALL,
Plaintiff,
vs.
PHIL LOMBARDI;
JOHN DOE, Court Clerk;
MARY JANE, Court Clerk; et al.,
Defendants.
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Case No. 13-CV-484-SPF-PJC
OPINION AND ORDER
On July 31, 2013, Plaintiff, a prisoner appearing pro se, filed a civil complaint
(Dkt. # 1), and a motion to proceed in forma pauperis (Dkt. # 2). He asserts
jurisdiction pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Dkt. # 1 at 2. Because all district judges of the
Northern District of Oklahoma have recused due to a court conflict, the case has been
reassigned to the undersigned. See Dkt. # 4. By Order filed August 13, 2013 (Dkt.
# 5), the Court granted Plaintiff’s motion to proceed in forma pauperis and directed
him to pay an initial partial filing fee. On September 3, 2013, Plaintiff paid the initial
partial filing fee. See Dkt. # 7. On September 6, 2013, Plaintiff filed a “motion for
issuance of summons” (Dkt. # 8) and a motion for appointment of counsel (Dkt. # 9).
For the reasons discussed below, the Court finds this action shall be dismissed without
prejudice for failure to state a claim upon which relief may be granted. Plaintiff’s
recently filed motions shall be declared moot.
A. Standard for dismissal
Federal courts must engage in a preliminary screening of cases in which
prisoners seek redress from a governmental entity or officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The court must identify any
cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state
a claim upon which relief may be granted, or seek monetary relief from a defendant
who is immune from such relief. See § 1915A(b)(1),(2). To avoid dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present factual
allegations, assumed to be true, that “raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint
must contain “enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. A court must accept all the well-pleaded allegations of the complaint as true,
even if doubtful in fact, and must construe the allegations in the light most favorable
to the plaintiff. Id. at 555. However, “when the allegations in a complaint, however
true, could not raise a [plausible] claim of entitlement to relief,” the cause of action
should be dismissed. Id. at 558.
A pro se plaintiff’s complaint must be broadly construed under this standard.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520
(1972). The generous construction to be given the pro se litigant’s allegations “does
not relieve the plaintiff of the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). A reviewing court need not accept “mere conclusions characterizing
pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990); see
also Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation
to provide the grounds of his entitlement to relief requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” (quotations and citations omitted)). The court “will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997).
B. Claim is foreclosed by Heck v. Humphrey, 512 U.S. 477 (1994)
In his complaint, Plaintiff alleges that in one of his federal habeas corpus cases,
N.D. Okla. Case No. 08-CV-748-CVE-TLW,1 Defendants Phil Lombardi, Clerk of
Court for the Northern District of Oklahoma; John Doe, Court Clerk; and Mary Jane,
Court Clerk, deprived him of due process when, on or about January 9, 2009, his
“motion to admit and deny authenticity of attached documentation” was “mislabeled”
without providing him notice.2 See Dkt. # 1 at 13. Plaintiff alleges that because the
motion contained “material evidence of Plaintiff’s innocence,” he was deprived of an
“adequate and fair appellate review of his grounds for relief.” Id. at 13, 14. Based on
those allegations, Plaintiff identifies one count, as follows:
Count 1:
Defendants knowingly, intentionally and wantonly failed in bad
faith to provide plaintiff adequate notice depriving him of due
process, adequate appellate review, and his freedom as guaranteed
by the 1st, 5th, 6th and 14th Amendments of the United States
Constitution.
1
The Court takes judicial notice that in N.D. Okla. Case No. 08-CV-748-CVE-TLW, Plaintiff
challenged his conviction of Robbery With a Dangerous Weapon, After Former Conviction of Two
or More Felonies, entered in Tulsa County District Court, Case No. CF-2006-2740. He was
sentenced in that case to life imprisonment.
2
The docket sheet for Plaintiff’s habeas corpus case, N. D. Okla. Case No. 08-CV-748-CVETLW, reflects that on January 12, 2009, a document received from Plaintiff entitled “motion for the
Respondent to admit or deny the authenticity of the attached documentation” was entered on the
docket as a “notice of request for admissions.” See Dkt. # 7, N.D. Okla. Case No 08-CV-748-CVETLW. In the document, Plaintiff sought admissions from the originally named respondent, Stanley
Glanz. Id. The Court also notes that although Plaintiff referenced attached documents 1-A, 1-B,
2, 3, 4, 5, and 6, only documents 1-A and 1-B were actually attached to the “motion.” Id.
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Id. at 13. In his request for relief, Plaintiff demands “six million dollars (6,000,000).”
Id. at 18, 21.
Upon review of the docket sheet for N.D. Okla. Case No. 08-CV-748-CVETLW, the Court notes that Plaintiff complains of a docket entry made on January 12,
2009, or more than three (3) years before his petition for writ of habeas corpus was
denied on March 20, 2012.3 During the pendency of his habeas case, Plaintiff never
objected to the docket entry made by the Clerk of Court on January 12, 2009. Had the
document been filed as a “motion,” Plaintiff should have been aware, well in advance
of the final disposition of his case, that no ruling had been entered by the habeas court.
Yet Plaintiff did not inquire about the status of his “motion,” nor did he voice an
objection to the lack of a ruling on the “motion.” Plaintiff first voiced an objection
to the docket entry by writing a letter, received by the Clerk of Court on July 11,
2012,4 or approximately two (2) weeks after the Tenth Circuit’s ruling denying a
certificate of appealability.
The Court finds that Plaintiff’s claim for money damages resulting from
Defendants’ alleged mislabeling of a docket entry, thereby affecting his ability to
prove his innocence of the crime for which he has been convicted, is foreclosed by
Heck v. Humphrey, 512 U.S. 477 (1994). For that reason, the complaint shall be
dismissed without prejudice for failure to state a claim upon which relief may be
granted. In his complaint, Plaintiff essentially seeks to relitigate claims presented in
his habeas corpus case by alleging that Defendants’ actions resulted in a denial of due
3
Plaintiff appealed the denial of habeas corpus relief to the Tenth Circuit Court of Appeals.
By Order filed June 28, 2012, the Tenth Circuit denied a certificate of appealability and dismissed
the appeal. Plaintiff filed a petition for writ of certiorari at the United States Supreme Court. That
petition was denied on January 7, 2013.
4
The letter was placed on the docket (Dkt. # 41) in Case No. 08-CV-748-CVE-TLW. In that
letter, Plaintiff states that “[t]his letter is to personally provide your Office with ‘notice’ that I will
file a civil action [against] your Office and other federal officials.” Id.
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process and the denial of habeas corpus relief in N.D. Okla. Case No. 08-CV-748CVE-TLW. Because relief on Plaintiff’s claim that Defendants’ actions prevented
him from proving his actual innocence would necessarily undermine the validity
Plaintiff’s conviction entered in state court, Plaintiff must first show that the
conviction has been invalidated or otherwise set aside before he can seek damages for
these defendants’ alleged wrongdoing. See Heck, 512 U.S. at 487 (stating that when
judgment for the plaintiff “would necessarily imply the invalidity of his conviction or
sentence, . . . the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated”). The holding in Heck
applies to Bivens actions. Williams v. Hill, 74 F.3d 1339 (D.C. Cir. 1996) (finding
that a litigant may not recover damages in a Bivens action against federal officials
who allegedly brought about his or her conviction unless the conviction or sentence
has been invalidated or set aside); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005) (Heck’s favorable termination rule applies “no matter the relief sought . . .
[and] no matter the target of the prisoner’s suit . . . if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.” (emphasis in
original)).
Because Plaintiff makes no showing that his conviction has been
invalidated or otherwise set aside, his complaint in this case should be dismissed
without prejudice.
The Court recognizes that the holding of Heck does not apply when a habeas
remedy is unavailable. Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004); Cohen
v. Longshore, 621 F.3d 1311, 1316-17 (10th Cir. 2010) (holding that a plaintiff “who
has no available remedy in habeas, through no lack of diligence on his part, is not
barred by Heck from pursuing a § 1983 claim (emphasis added)). Plaintiff has already
sought habeas corpus relief as to his conviction entered in Tulsa County District
Court, Case No. CF-2006-2740, without success. Although the finality provisions of
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28 U.S.C. § 2244 limit a prisoner’s ability to file second or successive habeas petition,
Plaintiff could move for authorization from the Tenth Circuit Court of Appeals to file
a second or successive petition raising the constitutional claim identified in this action.
See 28 U.S.C. § 2244(b)(3)(A). In addition, Plaintiff could have filed a motion for
relief from judgment in his habeas case rather than file the instant civil rights action.
Regardless, however, the Court need not decide whether a habeas remedy is
unavailable under these facts, thereby allowing Plaintiff to escape the bar imposed by
Heck, because Plaintiff’s claim otherwise fails to state a claim upon which relief may
be granted.
C. Plaintiff’s claim fails to state a claim
Plaintiff’s Bivens claim fails to state a claim upon which relief may be granted.
First, the docket entry made in the habeas case appears to be nothing more than a
clerical error. Plaintiff provides no factual support for his conclusory allegation that
Defendants acted in bad faith. In addition, Plaintiff was not deprived of his
constitutional rights as a result of his “motion” being filed as a “notice” because he
cannot demonstrate that he suffered prejudice. The information and allegations
contained in the document were cumulative to information before the habeas court
when the petition was denied. The two attachments to the “motion” were identified
by Plaintiff as investigative notes prepared by Detective Bob Little. Plaintiff sought
to use the notes to challenge both the victim’s identification of Plaintiff as the man
who robbed her and assaulted her with a hammer and descriptions of other evidence
linking him to the crime. Plaintiff raised his claim of “actual innocence” based on
discrepancies between the robbery victim’s description of her assailant’s physical
appearance, as given to Detective Little, and Plaintiff’s physical appearance before the
state courts, in the federal habeas court, and in the Tenth Circuit Court of Appeals. All
of the courts denied relief on his claim. In this Bivens action, Plaintiff has presented
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facts that were not before the habeas court, demonstrating that had his document been
docketed as a “motion,” rather than as a “notice,” the outcome of his habeas case
would have been different.
In addition, in the “mislabeled” document, Plaintiff sought to engage in
discovery by submitting a request for admissions. A review of the docket for N.D.
Okla. Case No. 08-CV-748-CVE reflects that Plaintiff had not received leave of court
to engage in discovery prior to submitting his request for admissions as required by
Rule 6(a), Rules Governing Section 2254 Cases (requiring that a habeas petitioner
obtain leave of court prior to conducting discovery). Nor has Plaintiff provided any
facts suggesting that he could have demonstrated “good cause” as is necessary to be
authorized to engage in discovery. Id. For those reasons, Plaintiff has failed to
demonstrate that, had the document been filed as a “motion,” it would have been
granted.
Lastly, the Court notes that on February 6, 2009, or less than one month after
the “mislabeled” document was entered on the docket, Plaintiff filed a “motion for
inspection and production of documents” (Dkt. # 15 in N.D. Okla. Case No. 08-CV748-CVE-TLW). In that motion, Plaintiff requested that the habeas court order
production of reports and other records to corroborate “his allegations that the
evidence was unreliable, exculpatory and showed he was actually innocent.” Id. That
motion was considered and denied by Order filed June 11, 2009 (Dkt. # 17 in N.D.
Okla. Case No. 08-CV-748-CVE-TLW). Thus, contrary to Plaintiff’s allegations in
this civil rights case, the habeas court was well aware of his allegations of actual
innocence and challenges to the evidence based on unreliable eye witness testimony
and identification. In the Opinion and Order denying habeas corpus relief, the habeas
court considered the reliability of the victim’s identification testimony and determined
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that Plaintiff was not entitled to relief under 28 U.S.C. § 2254(d). See Dkt. # 25 at 4-7
in N.D. Okla. Case No. 08-CV-748-CVE-TLW.
In summary, Plaintiff’s claim that he was deprived of his constitutional rights
by Defendants’ action resulting in Plaintiff’s “motion” being docketed as a “notice,”
fails to state a claim upon which relief may be granted. Therefore, even if Plaintiff’s
civil rights claim is not foreclosed by Heck, this action would be dismissed under 28
U.S.C. § 1915(e)(2)(B)(ii).
D. First “prior occasion” under 28 U.S.C. § 1915(g)
Plaintiff has been granted leave to proceed in forma pauperis. In addition, his
complaint fails to state a claim upon which relief may be granted. As a result, the
complaint shall be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). This
dismissal shall count as Plaintiff’s first “prior occasion” under 1915(g) (providing that
“[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal
in a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury”).
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Plaintiff’s claim is foreclosed by Heck v. Humphrey, 512 U.S. 477 (1994). In
the alternative, the claim fails to state a claim upon which relief may be granted.
2.
The complaint (Dkt. # 1) is dismissed without prejudice for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
3.
The Clerk is directed to flag this dismissal as Plaintiff’s first “prior occasion”
for purposes of 28 U.S.C. § 1915(g).
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4.
Plaintiff’s motions for issuance of summons (Dkt. # 8) and for appointment of
counsel (Dkt. # 9) are declared moot.
5.
A separate judgment shall be entered in this matter.
DATED this 16th day of September, 2013.
13-0484p003.wpd
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