Opinion
Civil Action No. 3:99-CV-1280-D.
August 14, 2000.
MEMORANDUM OPINION AND ORDER
Defendant Lawrence Mitchell, Esq. ("Mitchell") moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss this Bivens action by plaintiff Brian Anthony Davis ("Davis"). For the reasons that follow, the court grants the motion.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
I
Davis brought suit against Mark D. McBride, Esq. ("McBride"), Edwin V. King ("King"), Roy Lee Stacy, Esq., and Mitchell. Davis was tried and convicted of multiple federal drug offenses and later sentenced to life in prison. McBride was the Assistant United States Attorney who prosecuted the case against Davis. Stacy and King served as Davis' trial counsel. Mitchell was Davis' retained habeas counsel.
The court granted McBride's motion to dismiss on April 24, 2000 and entered a final judgment dismissing him as a defendant. By order of June 27, 2000, the court granted the motions to dismiss of King and Stacy and entered a final judgment dismissing them as defendants.
Davis alleges that he went to trial despite his desire to accept a plea offer that would have entailed a sentence much more favorable than life imprisonment. He avers that the government offered him a ten-year sentence in exchange for a guilty plea and his cooperation, that he advised his counsel that he wished to accept the offer, but that his counsel unilaterally proceeded to trial over his objection.
After Davis' conviction and sentence were affirmed on direct appeal, see United States v. Stevens, No. 94-10216 (5th Cir. May 24, 1995) (unpublished opinion), he filed a motion to vacate sentence, pursuant to 28 U.S.C. § 2255. The present lawsuit stems from that habeas proceeding. Davis alleges that when he sought collateral relief on the basis that his trial attorneys were ineffective for rejecting the ten-year deal and proceeding to trial, the government responded by producing a written statement that showed that Davis was the one who decided to reject the government's offer and to stand trial. Davis alleges that the document is a forgery fabricated by the defendants Mitchell, McBride, Stacy, and King.
The court denied habeas relief Davis appealed the court's decision, and the Fifth Circuit denied a certificate of appealability on March 29, 2000. See United States v. Davis, No. 99-11104 (5th Cir. Mar. 29, 2000) (order) (per Smith, J.).
Davis alleges that Mitchell conspired with McBride, Stacy, and King to violate his civil rights by forging the written statement, contends that Mitchell refused to challenge the authenticity of the statement, forcing Davis to proceed with his § 2255 motion pro se, and asserts that Mitchell, McBride, Stacy, and King destroyed the statement and represented to the magistrate judge that the statement had "disappeared." Davis seeks $1 million in damages from Mitchell.
Mitchell moves for failure to state a claim. He contends inter alia that Davis has failed to plead the specific facts necessary to allege a conspiracy.
II
Earlier in this case, the court held that Davis' complaint was inadequate to plead a conspiracy and ordered Davis to file an amended complaint that pleads a conspiracy based on specific factual allegations. Mitchell maintains that the amended complaint is still insufficient. The court agrees.
Plaintiffs who advance conspiracy claims must plead specific facts, not merely conclusory allegations. Young v. Biggers. 938 F.2d 565, 569 (5th Cir. 1991); Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987). Bald allegations that a conspiracy existed are insufficient. Lynch, 810 F.2d at 1371. Davis' amended complaint fails to allege specific facts, He merely avers that "defendant McBride conspired and agreed with defendants King, Stacy and Mitchell to forge the `note.'" Am. Compl. ¶ 17. He claims that "Mr. Mitchell told plaintiff that he saw `the original copy' of the `note' and that he believe[d] defendants McBride, Stacy and King's statements that `the note was written and signed by plaintiff.'" Id. at 21. He alleges that "[b]ecause of plaintiff's persistent request for handwriting examination of the note, defendants McBride, King, Stacy and Mitchell conspired and agreed to keep plaintiff incarcerate[d] for the duration of his life and deprive plaintiff from receiving the 10-year plea offered." Id. at ¶ 25. Davis asserts that during an ex parte hearing, defendants lied to the magistrate judge and stated that the note was now missing. Id. He contends that defendants destroyed the note. These allegations are insufficient to plead conspiracy. See, e.g., Young, 938 F.2d at 569 (holding that plaintiff's conclusory assertions that attorneys conspired to rig jury lacked specific facts necessary to state conspiracy claim). Davis' assertion that "[d]efendants McBride, King, Stacy and Mitchell conspired to violate plaintiff's constitutional right . . , because plaintiff is a black male," Am. Compl. ¶ 27, is similarly flawed, because it contains no specific facts that support his conclusory allegation.
Accordingly, the court grants Mitchell's motion to dismiss and dismisses this action against him with prejudice by judgment filed today.
SO ORDERED.