Makdessi v. McAuliffe et al

Filing 38

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/13/2015. Copy mailed to Plaintiff on 10/13/15.(tjoh, )

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

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ADIB EDDIE RAMEZ MAKDESSI,
Plaintiff,
V.

Civil Action No. 3:14CV214

TERRY McAULIFFE, et ai.
Defendants.
MEMORANDUM OPINION

Adib Eddie Ramez Makdessi, a Virginia inmate proceeding pro se and informa pauperis,

filed this 42 U.S.C. § 1983 action.' The matter isbefore the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
I.

PRELIMINARY REVIEW

Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any

action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state
a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The
first standard includes claims based upon "'an indisputably meritless legal theory,'" or claims
where the "'factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417,427

(E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is
the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

' The statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof 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

42 U.S.C. § 1983.

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the

applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the

plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130,1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).

The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the

claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.'" BellAtl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labelsand
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations

omitted). Instead, a plaintiffmust allege facts sufficient "to raise a right to relief abovethe

speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570,
ratherthan merely "conceivable." Id. "A claim has facial plausibility when the plaintiffpleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must
"allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I DuPont de

Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); lodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,
while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th

Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his complaint. See
Brock V. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of

Hampton, 11S F.2d 1274, 1278 (4th Cir. 1985).
II.

SUMMARY OF ALLEGATIONS

Makdessi was convicted in the Circuit Court for Virginia Beach ("Circuit Court") and "is

currentlyservingtwo life sentences for first-degree murderfor the May 14, 1996 killings of Elise
Makdessi, his wife, and Quincy Brown, Elise's co-worker at Naval Air Station Oceana ("NAS

Oceana")" and an additional thirteen years for two firearm crimes. Makdessi v. Watson, 682 F.

Supp. 2d 633, 636 (E.D. Va. 2010). In his rambling Complaint, Makdessi alleges that

Defendants,^ who appear to benearly every individual involved in his criminal proceedings, are
part of the "crime" or "conspiracy of hate, racism, and prejudice that led them to have me
fraudulently indicted and fraudulently convicted in violation of my guaranteed federally

protected constitutional rights of[the] Ist,^ 4th,'^ 5th,^ 6th,^ 8th,^ and 14th Amendments."^
^Defendants are as follows: Terry McAuliffe, Governor of Virginia; Harvy Bryant,
Commonwealth's Attorney for Virginia Beach; Katherine Orsini, Catherine Dodson, and Calvin
Depew, Assistant Commonwealth's Attorneys for Virginia Beach; Leah Darron, Assistant
Attorney General; Peter Legler and Annet Miller, Virginia Beach Public Defenders; Benjamin
Thomas Reed, court-appointed defense attorney; Shepherd Wainger and J. Bradley Reaves,
direct appeal attorneys; David Eberhardt, Richard E. Lubow, and two John Doe defendants, all
State Department employees; and, Virginia Beach Circuit Judge Edward Hanson. (Compl.
Attach. 1, ECF No. 1-1.) The Court employs the pagination assigned to the attachment to
Makdessi's Complaint by the CM-ECF docketing system.

^"Congress shall make no law ... abridging the freedom of speech ...." U.S. Const,
amend. I.

(Compl. 2.f Much like the claims he raised inhis 28 U.S.C. § 2254 petition that this Court
denied on February 4, 2010, see, e.g., Makdessi, 682 F. Supp. at 648-49, 657, Makdessi
continues to insist that he is actually innocent of his crimes of conviction, and that Defendants

"conspired by covering-up" and "tampered with" allegedly exculpatory evidence and committed

fraud upon the Circuit Court. (Compl. Attach. 8.) Makdessi's allegations in the instant § 1983
action mirror his fanciful and outlandish claims of innocence and of the purported wrongdoings

in his criminal proceedings from his prior habeas petition.

^"The right of the people to be secure intheir persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated

" U.S. Const, amend. IV.

^"No person shall be... deprived of life, liberty, or property, without due process of
law...U.S. Const, amend. V.

^ In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury ... and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. Const, amend. VI.

^"Excessive bail shall not be required, norexcessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.

^"No State shall... deprive any person of life, liberty, or property, without due process
of law

" U.S. Const, amend. XIV, § 1.

^The Court corrects the capitalization and spelling in the quotations from Makdessi's
submissions.

As explained in its February 2, 2010 Memorandum Opiniondismissinghis § 2254
petition:

[Makdessi] has always maintained that [Quincy] Brovm assaulted him and tied
him up as [Makdessi] and Elise returned to their apartment from dirmer, and that
he shot Brown in self-defense while Brown was raping and stabbing Elise.
[Makdessi] claimed that Brown and other individuals sought to prevent Elise from
reporting that NAS Oceana personnel had sexually harassed and raped her
previously. The Commonwealth argued that Makdessi killed Elise to collect her

Makdessi demands $50,000 from each defendant and "the right for a new habeas corpus

based on 'actual innocence.'" (Compl. Attach. 2.) As explained below, Makdessi's Complaint
will be DISMISSED AS FRIVOLOUS.
III.

A.

ANALYSIS

Defendants Immune From Suit

I.

Prosecutorial Immunity

Prosecutorial immunity bars Makdessi's claims against Defendants Bryant, Orsini,

Dodson, Depew, and Darron. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Prosecutorial
immunity extends to actions taken while performing "the traditional functions of an advocate,"
Kalina v. Fletcher, 522 U.S. 118,131 (1997) (citations omitted), as well as functions that are

"intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430.
To ascertain whether a specific action falls withinthe ambit of protected conduct, courts employ

a functional approach, distinguishing acts of advocacy from administrative duties and

investigative tasks unrelated "to an advocate's preparation for the initiation of a prosecution or

for judicial proceedings." Buckley v. Fitzsimmons, 509 U.S. 259,273 (1993) (citation omitted);
Carter v. Burch, 34 F.3d 257, 261-63 (4th Cir. 1994). Absolute immunity protects those "acts

undertaken by a prosecutor in preparing for the initiation ofjudicial proceedings or for trial, and
which occur in the course of his role as an advocate for the State." Buckley, 509 U.S. at 273.

Makdessi fails to plead facts plausibly suggesting that Defendants' purported actions were taken

outside oftheir roles as advocates for the state in his criminal prosecution.'' See Imbler, 424
two life insurance policies, fabricated evidence that Elise had been raped, and
tampered with the crime scene.
Makdessi, 682 F. Supp. 2d at 636.

For example, Makdessi suggests that, the Commonwealth's Attorney's office refused
to introduce allegedly exculpatory evidence. (Compl. Attach. 11-12.) Assuming arguendo

U.S. at 430 (holding that prosecutorial immunityextends to prosecutor's actions "in initiating a
prosecution and in presenting the State's case"); Carter, 34 F.3d at 263 (explaining that
"although the trial had been completed, [the prosecutor's] functions in representing the State in .

.. post-conviction motions ... very much implicated the judicial process ..."). Accordingly,
Makdessi's claims against Defendants Bryant, Orsini, Depew, and Darron will be DISMISSED.
2.

Judicial Immunity

Judges are absolutely immune from suits under § 1983 for acts committed within their

judicial discretion. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). "Absolutejudicial
immunityexists 'because it is recognized that judicial officers in whom discretion is entrusted
must be able to exercise discretion vigorously and effectively, without apprehension that they

will be subjected to burdensome and vexatious litigation.'" Lesane v. Spencer, No. 3:09CV012,
2009 WL 4730716, at *2 (E.D. Va. Dec. 3, 2009) (quoting McCray v. Maryland, 456 F,2d 1, 3

(4th Cir. 1972) (citations omitted), overruled on other grounds. Pink v. Lester, 52 F.3d 73, 77

(4th Cir. 1995)). Judges are entitled to immunity even if "the action he took was in error, was
done maliciously, or was in excess of his authority

" Stump, 435 U.S. at 356. Only two

exceptions apply tojudicial immunity: (1) nonjudicial actions, and (2) those actions, "though
judicial in nature, taken in complete absence of alljurisdiction." Mireles v. Waco, 502 U.S. 9,
11-12 (1991) (citation omitted). Neither exception applies in this instance.

For example, Makdessi complains that Judge Hanson would not remove the public
defenders (Compl. Attach. 6), stopped Makdessi from speaking in court proceedings {id.), and
purportedly refused to allow Makdessi to put on hispro se defense in the manner that Makdessi
desired (id. at 9). Makdessi fails to allege that Judge Hanson acted without jurisdiction or took
Makdessi could demonstrate that this evidence was material and exculpatory, prosecutors enjoy
absolute immunity from civil liability for allegations that they withheld material exculpatory
evidence. Brown v. Daniel, Nos. 99-1678, 99-1679, 99-1680, 2000 WL 1455443, at *2 (4th
Cir. 2000) (quoting Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994)).

non-judicial actions for which he would lack entitlement to immunity. Accordingly, the claims
against Defendant Hanson will be DISMISSED.
B.

Defense Attorneys are not State Actors

Private attorneys and public defenders do not act under color of state or federal authority

when they represent defendants in criminal proceedings. See, e.g.. Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981) ("[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.");
Cox V. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (holding that private attorneys do not act

under color of state or federal law when representing clients). Accordingly, Makdessi's claims

against Defendants Legler, Miller, Reed, Waigner, and Reaves will be DISMISSED.
C.

Makdessi's Claims are Also Barred by Heck v. Humphrey.^ 512 U.S. 477
(1994)

Makdessi claims that he is "not challeng[ing] the validity" of his conviction, but is

"challeng[ing] the procedure of hate, racism, and prejudice by proving to the federal court and
jury in a publicly held trial that an actually innocent man was fi-audulently convicted." (Compl.
Attach. 2.) Despite this weak attempt at categorizing his claims as claims properly brought

pursuant to § 1983, Makdessi clearly seeks the invalidation or vacation of his criminal conviction

and sentence.'^ However, the notion that Makdessi may seek, through a civil suit, the vacation
or alteration of his criminal convictions and sentence, "is legally frivolous under Heck v.

Humphrey, 512 U.S. 477 (1994), and related cases." Payne v. Virginia, No. 3:07cv337, 2008
WL 1766665, at *2 (E.D. Va. Apr. 17, 2008).

Makdessi's demand for relief in the form of allowing him to file a new § 2254 petition
challenging his convictions underlines his true intention to challenge his conviction and
sentence. Makdessi also submits a brief in support of his "42 U.S.C. § 1983 action and for future
writ of habeas." (ECF No. 18, at 1.)

In Heck, the Supreme Court emphasized that civil tort actions are "not appropriate
vehicles for challenging the validity of outstanding criminal judgments." Heck, 512 U.S. at 486.
The Supreme Court then held that:

[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlav^lness would
render a conviction or sentence invalid, a [civil rights] plaintiff must prove that
the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486-87 (internal footnote omitted). The Supreme Court then required that

when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.
Id. at 487.

In Edwards v. Balisok, the Supreme Court extended Heck to civil rights actions that do

not directly challenge confinement, but instead contest procedures which necessarily imply
unlawful confinement. See 520 U.S. 641, 646 (1997). The Supreme Court has explained that
Heck and its progeny teach that:

[A] state prisoner's § 1983 action is barred (absent prior invalidation)—no
matter the relief sought (damages or equitable relief), no matter the target of the
prisoner's suit (state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).

Makdessi seeks damages because defendants "conspire[d] with each other" to
"fraudulently convict an 'actually innocent' man" and seeks permission from the Court to
continue to attack his conviction and sentence by a second habeas petition. (Compl. Attach. 2.)
Makdessi insists that he is irmocent and alleges purported injustices beginning with his

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indictment and transportation to the United States, pre-trial, during trial, and through his appeal.
Makdessi fails to articulate, and the Court fails to discern, how he could both prevail on such

claims and not simultaneously invalidate the fact of his confinement. See Edwards^ 520 U.S. at
648; Heck, 512 U.S. at 479,481, 490 (concluding alleged due process violations barred in

§ 1983); see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when"the relief
[a prisoner] seeks is a determination that he is entitled to immediate release or a speedierrelease
from [custody], his sole federal remedy is the writ of habeas corpus").
Because success on his claims necessarily implies invalid confinement, under the second

prong of the Heckanalysis, Makdessi must demonstrate a successful challenge to his current
conviction. Heck, 512 U.S. at 487. Makdessi fails to allege that the state court has invalidated
his current convictions or sentence. Id. at 486-87. Thus, Heck bars Makdessi's claims.

The Court also finds that Makdessi fails to bring this action in good faith to vindicate his

legal rights, but instead brings it maliciously to harass the prosecutors responsible for obtaining
his conviction, the Circuit Court judge who presided over his criminal trial, his defense

attorneys. State Department employees, and the Governor for failing to pardonhim.
Accordingly, the Court also dismisses this action as malicious and frivolous. See Cain v.

Virginia, 982 F. Supp. 1132, 1136-38 (E. D. Va. 1997) (citations omitted) (observing that where
"the tone of [a prisoner] Plaintiffs allegations indicates that he is bringing his suit merely to

satisfy his desire for vengeance against [those involved in securing his incarceration] and not to
rectify any wrong done to him, then the suit is a MALICIOUS one" (quoting Spencer v. Rhodes,
656 F. Supp. 458, 363-64 (E.D.N.C. Mar. 19, 1987))).

IV.

CONCLUSION

Accordingly, Makdessi's claims and the action will be DISMISSED as legally frivolous
and malicious. The Clerk will be directed to note the disposition of the action for the purposes of
28 U.S.C.§ 1915(g).

An appropriate Final Order will accompany this Memorandum Opinion.

Date:

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IsL ^
James R. Spencer
Senior U. S. Disirict Judge

Richmond, Virginia

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