United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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.
Nature of Proceedings.
Complaint and Amendment to the Complaint. (Docs. 1,
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).
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” to be given to the federal
prosecutors for prosecution. (Id. at 10).
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.).).
A Brief Survey of Sturdivant's § 2254 Habeas
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). 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).
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. (Doc. 17).
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.).
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
Standards of Review Under 28 U.S.C. §
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). A claim is frivolous as a matter of law
where, inter alia, the defendants are ...