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Sturdivant v. Marshall

United States District Court, S.D. Alabama, Southern Division

June 7, 2018

TOMMY STURDIVANT, #148248, Plaintiff,
v.
STEVE MARSHALL, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Tommy Sturdivant, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. His action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After careful review, it is recommended that this action be dismissed with prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.

         I. Nature of Proceedings.

         A. Complaint and Amendment to the Complaint. (Docs. 1, 4).

         In his complaint Sturdivant names as Defendants, Alabama Attorney General Steve Marshall and Assistant Attorney General Jack W. Willis. (Doc. 1 at 5). His claim against these Defendants arises from his habeas proceeding filed in this Court, Sturdivant v. Jones, CA No. 17-0233-WS-C (S.D. Ala. pending). He claims that in his federal habeas action, Defendants made a false statement in their November 8, 2017 response to his motion for permission to supplement petition, which he claims is a fraud intended to deceive this Court. (Id. & Doc. 4 at 2). He states that in Defendants' November 8, 2017 response, they also apologized to him and to the Court for their mistake in their August 28, 2017 answer, wherein they denied that he filed a habeas corpus petition in the Circuit Court of Barbour County, Alabama. (Doc. 1 at 5 & Doc. 4 at 1). For this, Sturdivant seeks $10, 000.00 in compensatory damages and $25, 000.00 in punitive damages (Doc. 1 at 7), and for Defendants to be charged and prosecuted by the federal prosecutor's office. (Id. at 10).

         In an attachment to the complaint, which is titled “complaint and warrant, ” Sturdivant provides additional facts. (Id. at 8 -10). He claims that in the federal habeas action in the respondent's November 8, 2017 response, Defendant Willis stated that “the record of the state habeas corpus . . . petition were[sic] not part of the records of the Office of the Attorney General.” (Id. at 9). Whereas, Sturdivant contends that on May 15, 2017, the Barbour County Circuit Court added the Office of Attorney General to the docket sheet, and the Attorney General's Office filed a motion to transfer on October 11, 2017. (Id.). Sturdivant claims that Defendant Willis, nonetheless, stated that it was not a part of the Attorney General's records and that this fraud was endorsed by Defendant Marshall. (Id.). He maintains that this is not an isolated incident in his federal habeas case and provides an example of another incident when the Attorney General's Office raised the time-bar. (Id.). Sturdivant alleges that the time-bar representation was made to willfully deceive the Court to deny his right to courts, and it was perjury, misleading, and a legal fraud. (Id. at 9-10). For this, he wants the “complaint and warrant”[1] to be given to the federal prosecutors for prosecution. (Id. at 10).

         In addition to the foregoing allegations, Sturdivant provided other information in the complaint concerning an underlying probation revocation, which he does not clearly present or connect to Defendants' actions. That is, he claims that on January 16, 2013, he filed a complaint in the Choctaw County Circuit Court, CV-2013-000012.00, about the revocation of his probation on April 4, 2008, and requested a jury trial. (Id. at 4). A hearing on his complaint was held on February 8, 2018. (Id.). His complaint was pending as of April 13, 2018, when he filed the present action. (Id.). And Plaintiff provided other information about this state-court complaint challenging his probation revocation but did not explain their connection or significance. (For instance, Sturdivant filed a demand for judgment in CV-2013-000012.00 on March 19, 2013; he was placed under double jeopardy on May 19, 2010; “Choctaw County Circuit Court did not set aside its order of revocation on May 20, 2009”; Alabama and/or a judge wanted to deny him an attorney and a jury trial in CV-2013-000012.00; he was not given a Faretta hearing; and he was not advised of the danger and disadvantages of representing himself. (Id.).).

         B. A Brief Survey of Sturdivant's § 2254 Habeas Proceeding.

         On May 22, 2017, Sturdivant filed a petition for relief under 28 U.S.C. § 2254 in this Court. Sturdivant v. Jones, CA No. 17-0233-WS-C (S.D. Ala. pending).[2] After filing his petition on the current petition form, as ordered by the Court, his amended petition was served on respondent. (Docs. 7, 9-11). In the answer, respondent provides that Sturdivant is “challeng[ing] his May 16, 2011, Choctaw County, Alabama, guilty-plea convictions for two counts of sexual abuse of a child less than twelve years old and his resulting concurrent sentences of fifteen-years imprisonment.” (Doc. 13 at 1). Respondent asserted that the petition should be dismissed because the claims are time-barred, procedurally defaulted, or meritless. (Id. at 2). The respondent is represented by Defendant Willis for the Office of the Alabama Attorney General. (Id. at 42).

         In the answer, Defendant Willis advised the Court that he did not find a record of a state habeas corpus petition filed by Sturdivant in Barbour County. (Id. at 3). Sturdivant contested this representation and attached a case action summary of his case filed in the Circuit Court of Barbour County, Sturdivant v. Jones, CV 2017 000010.00. (Doc. 16 at 4, 5). Subsequently, on October 30, 2017, Sturdivant filed motion for permission to supplement petition based on respondent filing a motion in state court to convert his habeas petition to a Rule 32 petition and to transfer it to Choctaw County.[3] (Doc. 17).

         In the response to Sturdivant's motion for permission to supplement petition, Defendant Willis admitted that he was incorrect when he stated that Sturdivant had not filed a state habeas corpus petition in Barbour County. (Doc. 18 at 2-3). Defendant Willis said that he relied on the records in the Attorney General's Office instead of examining the AlaCourt website. (Id. at 3). Defendant Willis “apologize[d] to Sturdivant and to this Court for that mistake.” (Id.). Defendant Willis further stated Sturdivant filed the two habeas petitions in Barbour County Circuit Court “asking for relief from the Choctaw County Circuit Court's failure to rule on his Rule 32 petitions.” (Id.).

         As a consequence, Defendant Willis requested that this Court grant Sturdivant's motion to supplement and that he be allowed to expand the record with the two habeas corpus proceedings from Barbour County. (Id. at 5-6). Defendant Willis also sought to be allowed to supplement the respondent's answer to the original petition with the arguments contained in the response, which concluded that the error on his part did not affect the original answer and that Sturdivant's § 2254 petition is due to be dismissed. (Id. at 6-8). On November 13, 2017, this Court granted Sturdivant's motion for permission to supplement his 28 U.S.C. § 2254 petition and respondent's motion to supplement its answer and to expand the record. (Docs. 17, 18). The Court granted Sturdivant an opportunity to respond to respondent's response by December 18, 2017. (Id.). On December 15, 2017, the Court received Sturdivant's motion of inquiry, in which he inquires whether the Court receive his “complaint and warrant.” (Doc. 22). This Court did receive his “complaint and warrant” (Doc. 21), (which is substantially the same as the “complaint and warrant” attached to the complaint in the present § 1983 action). At this time, Sturdivant's habeas action is pending with no report and recommendation having been entered.

         II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

         Because Sturdivant is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous where it lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).[4] A claim is frivolous as a matter of law where, inter alia, the defendants are ...


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