United States District Court, N.D. Alabama, Southern Division
Brian Keith Gates, Plaintiff, Pro se, Clio, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
STACI G. CORNELIUS, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Brian Keith Gates, has filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged. The plaintiff is currently incarcerated at the Easterling Correctional Facility in Clio, Alabama. The complaint names as defendant Jefferson County District Judge John E. Amari and seeks monetary and injunctive relief. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
I. Standard of Review
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Where practicable, the court may sua sponte dismiss a prisoner's complaint prior to service. See 28 U.S.C. § 1915A(a).
A dismissal pursuant to § 1915A (b)(1) for failure to state a claim is governed by the same standards as dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). To survive dismissal for failure to state a claim, " a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). A plaintiff must assert " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nonetheless, because " [p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys[, ]" they are liberally construed. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
II. Factual Allegations
On April 9, 2008, the plaintiff hired attorney John E. Amari to represent him in criminal proceedings. (Doc. 1 at 5). The plaintiff hired Amari to obtain a sentence for him because the plaintiff's previous attorney failed to get the criminal case against the plaintiff dismissed or request that the court sentence the plaintiff. (Id.). The plaintiff paid defendant Amari $1, 750 on April 9, 2008, to " get a plea bargain and to get [the plaintiff] sentenced." (Id.)
The plaintiff was sentenced on August 4, 2008. (Doc. 1 at 5). The plaintiff complains he received " a bad sentence of 20 years split 5 years" for a first time felony offense, with no prior criminal history. (Id.). The plaintiff alleges he is mentally ill and was taking " mind altering drugs" when defendant Amari coerced him into accepting the plea agreement. (Id.) Amari repeatedly told the plaintiff that it was a " good sentence, " so the plaintiff signed the plea agreement. (Id.)
On the same day, defendant Amari told the plaintiff that he knew several senators and congressmen. (Id.). Amari stated that, if the plaintiff paid him $1, 000, he would talk to his " congressman [sic] friends" and have the plaintiff sent to Bullock Correctional Facility for his last two years in prison. (Id.). The plaintiff paid Amari $1, 000. (Doc. 1 at 5).
The plaintiff subsequently called and wrote defendant Amari to notify him that he did not agree with his sentence and requested that Amari file an appeal within the 42 day time period. (Doc. 1 at 5). However, defendant Amari refused to file an appeal, stating that the plaintiff had a " good sentence." (Id.).
The plaintiff alleges that on September 2, 2008, defendant Amari " deceived [him] again" by requesting another $414 to assist the plaintiff in getting transferred to Bullock Correctional Facility. (Id.). The plaintiff was never transferred to Bullock. (Id.). Defendant Amari withdrew sums from the plaintiff's Shelby County Jail account for $1, 750, $1, 000, and $414 in 2008. (Doc. 1 at 5-6).
The plaintiff alleges that defendant Amari owes him $1, 414 for " unrendered" legal services and that Amari is still the plaintiff's attorney " until he either pays back the money or does anymore [sic] services for [the plaintiff]." (Doc. 1 at 5). The plaintiff states that he has called defendant Amari over 100 times in the ...