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McCormick v. Barnes

United States District Court, M.D. Alabama, Northern Division

September 23, 2014

SAMUEL A. McCORMICK, #284527, Plaintiff,
v.
KATHENA BARNES, Defendant.

RECOMMENDATION OF THE MAGISTRATE JUDGE

WALLACE CAPEL, Jr., Magistrate Judge.

I. INTRODUCTION

In this 42 U.S.C. § 1983 action, Samuel A. McCormick ["McCormick"], a state inmate, complains his attorney's legal assistant, Kathena Barnes, committed fraud and fraudulent misrepresentation during proceedings related to a conviction imposed upon him by the Circuit Court of Covington County, Alabama, for possession of obscene matter involving a person under seventeen (possession of child pornography). Complaint - Doc. No. 1 at 1. Specifically, McCormick asserts that Barnes "presented a Plea of Guilty and Waiver of Arraignment to the Covington County Circuit Court as a true and correct document when... Kathena Barnes" did not know whether Barnes was the individual who actually signed the document. Id. "McCormick was injured by Kathena Barnes fraudulent presentation of said document wherefore McCormick's case proceeded to trial and McCormick was convicted and sentenced to serve 10 years in prison." Id. McCormick seeks declaratory relief and monetary damages from defendant Barnes. Id. at 4.

Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).[1]

II. DISCUSSION

A. Kathena Barnes

1. Claims Impacting McCormick's Constitutional Rights. An essential element of a 42 U.S.C. § 1983 action is that a person acting under color of state law committed the asserted constitutional deprivation. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999); Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993).

To state a [viable] claim for relief in an action brought under § 1983, [a plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.... [T]he under-color-of-state-law element of § 1983 excludes from its reach "merely private conduct, no matter how discriminatory or wrongful, '" Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)).... [Consequently, ] state action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, " and that "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)."

American Manufacturers, 526 U.S. at 49-50 (footnote omitted) (emphasis in original).

The law is well settled that neither an attorney nor his assistant act under color of state law during representation of an accused in criminal proceedings. Polk County v. Dodson, 454 U.S. 312 (1981); Mills v. Criminal District Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) ("[P]rivate attorneys [and by extension their legal assistants], even court-appointed attorneys, are not official state actors and... are not subject to suit under section 1983."). Since the conduct about which McCormick complains was not committed by a person acting under color of state law, the claims of ineffective assistance asserted against defendant Barnes are frivolous as such claims lack an arguable basis in law. Neitzke v. Williams, 490 U.S. 319, 327 (1989).[2] In light of the foregoing, the plaintiff's 42 U.S.C. § 1983 claims against defendant Barnes are due to be summarily dismissed in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i).

2. State Tort Claims of Fraud and Fraudulent Misrepresentation. To the extent McCormick seeks to invoke the supplemental jurisdiction of this court with respect to claims arising under state law, he is entitled to no relief. Review of pendent state law claims is only appropriate upon exercise of this court's supplemental jurisdiction over a related constitutional claim. In the posture of this case, however, the court concludes that the exercise of supplemental jurisdiction is inappropriate.

Two factors determine whether state law claims lacking an independent federal jurisdictional basis can be heard in federal court with a federal claim over which the court has jurisdiction. To exercise pendent jurisdiction [or what is now identified as supplemental jurisdiction] over state law claims not otherwise cognizable in federal court, "the court must have jurisdiction over a substantial federal claim and the federal and state claims must derive from a common nucleus of operative fact.'" Jackson v. Stinchcomb, 635 F.2d 462, 470 (5th Cir.1981) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). See generally C. Wright, A. Barley & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3567 pp. 443-47 (1975).

L.A. Draper and Son v. Wheelabrator Frye, Inc., 735 F.2d 414, 427 (11th Cir. 1984). The exercise of supplemental jurisdiction is completely discretionary. United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). "If the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of the state claims." L.A. Draper and Son, 735 F.2d at 428. In view of this court's resolution of the federal claims presented by McCormick challenging the representation provided by the defendant, any pendent state claim is due to be dismissed. Gibbs, 383 U.S. at 726 (if the federal claim from which the state claim arises is dismissed prior to trial, the state claim should be dismissed as well); see also Ray v. Tennessee Valley Authority, 677 F.2d 818 (11th Cir. 1982).

B. The Challenge to Plaintiff's Conviction

McCormick asserts that the actions about which he complains resulted in his conviction and imprisonment for possession of child pornography. The instant claims, by their very nature, go to the validity of McCormick's conviction and current incarceration. Consequently, these claims provide no basis for relief in this cause of action. Edwards v. Balisok, 520 U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S. 477, 487 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

In Heck, the Supreme Court held that a claim for damages challenging the legality of a prisoner's conviction or confinement is not cognizable in a 42 U.S.C. § 1983 action "unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus" and complaints containing such claims must therefore be dismissed. Heck, 512 U.S. at 483-89. The relevant inquiry is "whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." Id. at 487; Balisok, 520 U.S. at 646-48. "It is irrelevant that [the plaintiff] disclaims any intention of challenging his conviction [or sentence]; if he makes allegations that are inconsistent with the conviction's [or sentence's] having been valid, Heck kicks in and bars his civil suit." Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003), citing Balisok, 520 U.S. at 646-48.

The law is well settled that "habeas corpus is the exclusive remedy for a... prisoner who challenges" the basis for his incarceration. Heck, 512 U.S. at 481; Balisok, 520 U.S. at 645 (The "sole remedy in federal court" for a prisoner challenging the constitutionality of his confinement is a petition for writ of habeas corpus.); Okoro, 324 F.3d at 490 ( Heck directs that a state inmate "making a collateral attack on [the constitutionality of his confinement]... may not do that in a civil suit, other than a suit under the habeas corpus statute."). The rule of Heck is not limited to a request for damages, but is equally applicable to an inmate's request for declaratory judgment or injunctive relief. Balisok, supra . An inmate "cannot seek to accomplish by a § 1983 declaratory judgment what he must accomplish solely through a writ of habeas corpus." Jones v. Watkins, 945 F.Supp. 1143, 1151 (N.D. Ill. 1996); Miller v. Indiana Dept. of Corrections, 75 F.3d 330, 331 (7th Cir. 1996) (Under Heck, "[t]he [determinative] issue... is not the relief sought, but the ground of the challenge."). In Balisok, the Court "reemphasize[d]... that a claim either is cognizable under § 1983 and should immediately go forward, or is not cognizable and should be dismissed." Id. at 649.

The claims raised in the instant complaint regarding the representation provided by counsel and his legal assistant implicate the constitutionality of a conviction and resulting sentence imposed upon McCormick by the Circuit Court of Covington County, Alabama, for possession of child pornography. A judgment in favor of McCormick on these claims would necessarily imply the invalidity of this conviction and sentence. It is clear from the complaint that the conviction and sentence from which McCormick's claims arise have not been invalidated in appropriate proceedings. Consequently, any collateral attack under § 1983 on the conviction and sentence imposed upon McCormick is prohibited and subject to summary dismissal by this court pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii). Balisok, 520 U.S. at 645; Heck, 512 U.S. at 481; Preiser, 411 U.S. at 488-90.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. The plaintiff's claims against Kathena Barnes be dismissed with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).

2. The plaintiff's state tort claims against Kathena Barnes be DISMISSED without prejudice as the court declines to exercise supplemental jurisdiction over any such claims.

3. To the extent the complaint presents claims which challenge the constitutionality of a conviction and sentence imposed upon the plaintiff by the Circuit Court of Covington County, Alabama, the complaint be dismissed without prejudice pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii) as such claims are not properly before the court at this time.

4. The plaintiff's motion for summary judgment (Doc. No. 5) be DENIED.

5. This case be dismissed prior to service of process in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

It is further

ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before October 7, 2014. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive, or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ( en banc ) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).


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