United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is pending before the court on a
complaint and amendment thereto filed by Virgil Fredrick
Heiken, an indigent inmate, attacking actions related to his
arrest for various controlled substance offenses on March 9,
2016 at the residence of his father-in-law. The court takes
judicial notice of the case action summary for Heiken's
criminal cases as maintained on the Alabama Trial Court
System, hosted at www.alacourt.com. See Keith v.
DeKalb Cnty., 749 F.3d 1034, 1041 n.18 (11th Cir. 2014)
(holding that a federal court may “take judicial notice
of [the State's] Online Judicial System”). This
document reflects that upon his March 9, 2016 arrest Heiken
was charged with unlawful manufacture of a controlled
substance in violation of Alabama Code § 13A-12-218,
trafficking in methamphetamine in violation of Alabama Code
§ 13A-12-231(11), possession with intent to sell or
deliver drug paraphernalia in violation of Alabama Code
§ 13A-12-260(d)(1), and chemical endangerment of a child
in violation of Alabama Code § 26-15-3.2(a)(1). On
December 6, 2017, Heiken petitioned the trial court to plead
guilty pursuant to an information. Doc. 54-1 at 2. On
December 11, 2017, Heiken entered a guilty plea to unlawfully
manufacturing methamphetamine, as charged in Count 1 of the
information lodged against him by the District Attorney of
Covington County, Alabama. Specifically, Heiken admitted
[W]hile at or near Covington County, Alabama, on or about . .
. March 9, 2016, [he] did knowingly and unlawfully
manufacture a controlled substance, to-wit: methamphetamine
and/or did knowingly and unlawfully possess precursor
substance(s), to-wit: pseudoephedrine, with the intent to
unlawfully manufacture a controlled substance, and, in
conjunction with said act, did illegally possess, transport,
or dispose of hazardous or dangerous materials, to-wit:
methamphetamine producing [materials at or near] 305 Hattaway
Road and/or a clandestine laboratory operation actually
produced any amount of a specified controlled substance,
to-wit: methamphetamine and/or a clandestine laboratory
operation was for the production of a controlled substance
listed in Schedule I or Schedule II, to-wit: methamphetamine,
in violation of Title 13A-12-218 of the Code of Alabama,
54-1 at 6. The State nolle prossed the remaining charges
pending against Heiken. Doc. 54-1 at 11. Heiken did not file
a timely appeal of his conviction for the unlawful
manufacture of methamphetamine and this conviction therefore
became final 42 days after the entry of his guilty plea, on
January 22, 2018. See Ala. R. App. P. 4(b)(1).
instant complaint, Heiken alleges that the March 9, 2016
search of his father-in-law's residence on Hattaway Drive
in Opp, Alabama violated his constitutional rights and
resulted in the unlawful seizure of evidence. Doc. 1 at 3.
Specifically, Heiken asserts that the defendants did not
present a warrant or obtain permission for the search of the
home, cited no reason for entry into the home, and lacked
authorization to enter the residence. Docs. 1 at 3 & 41
at 2. Heiken further complains that the bond set by the state
court is unconstitutional because it “exceeds $350,
000.00 which is equivalent to ‘no bond.'”
Doc. 1 at 3. Heiken also challenges the lack of an indictment
in his cases. Doc. 1 at 3. Additionally, in an amendment to
the complaint, Heiken maintains that the search violated the
Alabama Rules of Criminal Procedure. Doc. 41 at 1. Heiken
names as defendants Dennis Meeks, the Sheriff of Covington
County, Alabama; Greg Jackson, an officer with the Covington
Count Sheriff's Department; and Josh Hudson, a member of
the 22nd Judicial Task Force. Heiken seeks a declaratory
judgment, injunctive relief, and monetary damages from the
defendants in their individual capacities.
defendants filed motions to dismiss and briefs in support of
their motions in which they argue that Heiken's claims
entitle him to no relief. Docs. 32, 33, 38 & 39.
Defendant Hudson also filed a supplement to his motion to
dismiss. Doc. 45. On September 18, 2017, the court issued an
order which provided Heiken an opportunity to respond to
these motions. Doc. 40. The order advised Heiken that his
failure to respond to the motions could result in the
dismissal of this case. Doc. 40. Heiken did not file a direct
response to this order, but the record indicates that the
court received a filing on September 18, 2017, postmarked
September 16, 2017, in which Heiken did address defendant
Hudson's motion to dismiss, maintaining “that the
motion to dismiss is without merrritt [sic] and or frivolous
[in] nature.” Doc. 41 at 1. In support of this
position, Heiken made the following assertions:
Officer Josh Hudson was not authorized to question plaintiff
as plaintiff was merely helping his wife clean her fathers
home <ie> co-defendant's father had been arrested
and charged with possession of a control[led] substance.
Prior to this date of events plaintiff and co-defendant were
sorting through her father's bedroom in preparation to
assure it was chemical free. . . .
There has been no information as to why Officer Josh Hudson
stopped by this residence with no warrant to present. What
was Hudsons reason, the record does not reflect thus far.
These facts presented is good cause why the honorable court
should deny the motion to dismiss, filed by Defendant
[Hudson] ¶ 9-6-17. All premises considered this court
holds jurisdiction to hear these and other facts. Subject
matter jurisdiction only requires factual bases for the
court. Plaintiff feels he has met that qualification.
Officer Hudson ask for immunity based on nothing and pursuant
to 12(b)(1)-(b)(6) rules of civil procedures. These
allegations [set forth in the complaint and amendment] are
factual and fundamental to the guilt or innocence of the
. . . [U]nlawful acts by our law enforcement shall not go
Doc. 41 at 2.
exhaustive review of the complaint, the amendment to the
complaint, the arguments set forth in the defendants'
motions to dismiss, as supported by their memorandum briefs,
the state-court record of Heiken's controlled substance
conviction, and applicable ...