Denton v. Vanderford

          MEMORANDUM OPINION

         The magistrate judge entered a report on October 31, 2013, recommending that plaintiff Ricky Walter Denton's failure to train or supervise claim against the Acting Sheriff of Colbert County be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and/or (2). (Doc. 27). The magistrate judge further recommended that all claims against Defendant Sgt. Tim Vanderford be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and/or (2), with the exception of the claim that Vanderford violated plaintiff's First Amendment constitutional rights when he opened and allowed others to read plaintiff's outgoing non-legal mail. (Id.).

         Plaintiff filed a “Response and Objections” to the report and recommendation on November 8, 2013. (Doc. 28). Plaintiff was ordered on October 18, 2014, to show cause why the claims against defendants Vanderford and the Colbert County Sheriff were not barred by the doctrine of res judicata. (Doc. 29 (citing Ricky Denton v. Sheriff of Colbert Cnty., et. al., CV-2010-213)). Plaintiff filed a response to the order to show cause on October 22, 2014. (Doc. 30).

         I. Defendant Vanderford - False Identification, Fabricated Evidence, Perjury and Witness Intimidation Claims

         The magistrate judge recommended dismissal of the above-listed claims against defendant Vanderford because plaintiff's bank robbery conviction has not been reversed or otherwise invalidated by a court of competent jurisdiction. (Doc. 27, at 6) (quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that “in order to recover damages for allegedly unconstitutional conviction or imprisonment . . ., a § 1983 plaintiff must prove that the conviction or sentence has been reversed, . . .expunged, . . . or declared invalid”)). In his objections, plaintiff “concedes” his 2011 bank robbery conviction has not been invalidated, and therefore his claims against defendant Vanderford based on false identification, fabricated evidence, perjury, and witness intimidation are due to be dismissed. (Doc. 28, at 2, 4). Nonetheless, he requests the claims be held “in abeyance” until his attack on that conviction is completed. (Id.). Plaintiff's request is DENIED.

         II. Defendant Vanderford - Unlawful Arrest Claims and Forgery Charges Stemming Therefrom

          Plaintiff objects to the use of December 19, 2009, the day defendant Vanderford arrested him, as the statute of limitations accrual date for the unlawful arrest claims. (Id. at 1-2). He contends the forgery charges stemming from those arrests were not dismissed until some two years later, and the accrual of his claims should be deferred to that date. (Id.). Plaintiff's objections are OVERRULED.

         The accrual of a claim “occurs . . . . when ‘the plaintiff can file suit and obtain relief.'” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). A plaintiff can “file[] suit as soon as the allegedly unlawful arrest occur[s], subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date.” Id. The Supreme Court has expressly rejected deferred accrual for unlawful arrest claims as “impractical.” Id. at 393. Thus, even if it is unknown “whether a prosecution will be brought” and an “anticipated future conviction never occurs, because of acquittal or dismissal[, ]” the accrual date, i.e. the date of arrest, cannot be deferred. Id. Instead, a district court can “stay the civil action until the criminal case or the likelihood of a criminal case is ended.” Id. at 393-94.

         In a related matter, and as a result of being charged with forgery, plaintiff's probation for another conviction and sentence was revoked. He has neither alleged nor shown that the revocation has been reversed. Thus, to the extent he is arguing that the unlawful arrests and bogus forgery charges undermine the validity of his probation revocation, that claim is due to be dismissed under the auspices of Heck v. Humphrey. See Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (holding that the Heck principle is applicable to probation and parole revocation proceedings).

         Plaintiff has not alleged a claim of malicious prosecution against defendant Vanderford in connection with the dismissal of the forgery charges that arose from his December 2009 arrest. Even if he had, or if his allegations are construed as such, that claim, as well as all other potential claims pertaining to the December 2009 arrest, are barred pursuant to the doctrine of res judicata. See infra, Section IV.

         III. Colbert County Sheriff - Failure to Train or Supervise

          The magistrate judge recommended dismissal of the failure to train or supervise claims against the Colbert County Sheriff because plaintiff's allegations displayed an attempt to hold the Sheriff liable under a respondeat superior theory, which is unavailable in Section 1983 cases. (Doc. 27, at 8). Plaintiff argues the Sheriff should not be dismissed because “he failed to supervise Vanderford and implemented a policy that allowed” Vanderford's actions; namely, exploitation of his private mail in violation of his First and Fourth Amendment constitutional rights. (Doc. 28, at 4). He asserts the Sheriff's supervision of Vanderford was “so relax (sic) it allowed Vanderford to act in such a manner, ” and “the Sheriff's policy governing the hand[l]ing of inmate mail was non existen[t].” (Id.).

         Plaintiff's objections are OVERRULED. He made no factual allegations and identified no constitutional claim against the Sheriff in the complaint. Moreover, the allegations in his objections are insufficient to state a claim against the Sheriff. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (conclusory and general assertions are not sufficient to state a claim upon which relief under § 1983 can be granted). Even if the allegations were sufficient, this claim is barred pursuant to res judicata principles. See infra, Section IV.

         IV. Vanderford - Opening and Allowing Others to Read the Plaintiff's Non-legal Mail

          The magistrate judge recommended that plaintiff's claim regarding Vanderford's alleged violation of his First Amendment rights when he opened and allowed others to read plaintiff's outgoing non-legal mail be referred for further ...