Opinion
1:21cv562 (TSE/IDD)
2021-05-18
Alkeim D. HOWARD, Plaintiff, v. William A. SHARRETT, et al., Defendants.
Alkeim D. Howard, Pocahontas, VA, Pro Se.
Alkeim D. Howard, Pocahontas, VA, Pro Se.
ORDER
T. S. Ellis, III, United States District Judge
Proceeding pro se, Virginia inmate Alkeim D. Howard initiated this action pursuant to 42 U.S.C. § 1983, alleging that the defendants William A. Sharrett, a judge, and Wallace W. Brittle, Jr., his defense counsel, violated his constitutional rights during his June 7, 2013 trial in the Circuit Court of Sussex County, Virginia. [Dkt. No. 1 at 3-5]. Plaintiff alleges that Sharrett's questioning of a witness violated his Fifth and Sixth Amendment rights and that Brittle's failure to object to Sharrett's questioning and to move for a mistrial violated his Sixth Amendment rights. [ Id. at 4-6]. Plaintiff seeks declaratory and monetary relief. A review of the complaint reveals that, in line with 28 U.S.C. § 1915A(b)(1), this action must be dismissed for failure to state a claim upon which relief may be granted.
Howard was convicted of attempted capital murder of a law enforcement officer, assault and battery of another law enforcement officer, malicious wounding, and misdemeanor destruction of property. On direct appeal, he challenged only the sufficiency of the evidence of the attempted capital murder of the law enforcement officer. The conviction was affirmed. Howard v. Commonwealth, Record No. 2150-13-2, 2014 WL 6427844, 2014 Va. App. LEXIS 378 (Va. App. Nov. 18, 2014). The Memorandum Opinion this Court issued on May 10, 2019 indicates the Supreme Court of Virginia refused Howard's petition for appeal on October 20, 2015 and his petition for rehearing on February 5, 2016. Howard v. Manis, No. 1:18cv1041 (TSE/TCB), 2019 WL 2078774 *1, 2019 U.S. Dist. LEXIS 79732 *2 (E.D. Va., May 10, 2019) (citing Howard v. Commonwealth, Record No. 150166). See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (collecting cases); Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th Cir. 1990) (holding that a district court may "properly take judicial notice of its own records"); see, e.g., Lynch v. Leis, 382 F.3d 642, 647 & n.5 (6th Cir. 2004) (taking judicial notice of state court records available to public online).
Plaintiff raised both of these claims in his federal habeas petition. Howard, No. 1:18cv1041, Dkt. No. 1 at 5-7, 8. Plaintiff's federal habeas petition was sworn to on June 27, 2018 and received and filed in this Court on August 15, 2018. The federal habeas petition indicates that each claim was raised in a prior proceeding dismissed by the Supreme Court of Virginia on February 13, 2018. Id. Dkt. No. 1 at 7, 10 (Howard v. Mannis, R. No. 171678 (Va. Feb 13, 2018)). The state habeas petition was filed "on or about December 15, 2017." Howard, 2019 WL 2078774, *1, 2019 U.S. Dist. LEXIS 79732, *2. See Colonial Penn Ins. Co., 887 F.2d at 1239 ; Anderson, 918 F.2d at 1141 n.1.
Section 1915A provides:
(a) Screening. —The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. —On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief can be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
I. Standard of Review
Pursuant to § 1915A, this Court must dismiss any claims based upon " ‘an indisputably meritless legal theory,’ " or claims where the " ‘factual contentions are clearly baseless.’ " Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992). (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ). The second standard is the familiar standard for a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) ; see also Martin, 980 F.2d at 952. Here, plaintiff sues the judge who presided over his trial in state court and the attorney who represented him at the trial. Plaintiff's allegations fail to state a claim upon which relief can be granted but allowing him to amend would be futile because not only are the defendants named immune from suit, his complaint must be dismissed under Heck v. Humphrey, 512 U.S. 477, 484-86, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and it is barred by the statute of limitations.
II. Immunity
Regarding defendant Sharrett, the allegations fail to state a claim upon which relief can be granted. Judges are immune from suits for damages arising out of their judicial acts as well as injunctive relief. See Donato Malave v. Abrams, 547 F. App'x 346, 347 (4th Cir. 2013) (Congress abrogated the limiting of judicial immunity for state judges for only money damages by amending § 1983 in 1996 and provided that "injunctive relief [against a judicial officer] shall not be granted unless a declaratory decree was violated, or declaratory relief was unavailable."); Roth v. King, 449 F.3d 1272, 1286, (D.C. Cir. 2006) (same). Thus, even if plaintiff were allowed to particularize and amend his complaint, such efforts would prove futile because, under any set of facts, the defendant may not be held liable in a claim under 28 U.S.C. § 1983.
Plaintiff's claim against his trial counsel is not cognizable under § 1983 because his trial counsel did not act under the color of state law while representing plaintiff in the criminal proceedings. See Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976) ("A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under § 1983."). Even if plaintiff suffered a deprivation of his constitutional rights by his trial counsel's allegedly ineffective representation, a "lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983." Briscoe v. LaHue, 460 U.S. 325, 329 n.6, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) ; see Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ("a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding"); Ward v. Ghee, 8 F.3d 823 (4th Cir. Oct. 13, 1993) (table case) ("[d]efense attorneys do not act ‘under color of’ state law and are, therefore, not amenable to suit under § 1983, whether privately retained, appointed by the state, or employed as public defenders"). Allowing plaintiff to particularize and amend the complaint, however, would be futile because defendant Brittle may not be held liable in a claim under § 1983.
III. Heck v. Humphrey
Moreover, plaintiff's attempt to obtain monetary damages stemming from his purportedly improper incarceration through a civil lawsuit is legally frivolous under Heck, which emphasized that civil tort actions are "not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486, 114 S.Ct. 2364. The Supreme Court explained that permitting civil actions to be used "for that purpose would undercut the long-standing concern not to undermine the finality of criminal convictions through civil suits." Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002) (citing Heck, 512 U.S. at 484-86, 114 S.Ct. 2364 ); see Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) ("state prisoner's § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration.").
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
Id. at 486-87, 114 S.Ct. 2364 (internal footnote omitted). The Supreme Court held that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487, 114 S.Ct. 2364. Here, plaintiff's convictions are still valid, and his allegations necessarily imply the invalidity of his convictions.
IV. Statute of Limitations
Under 28 U.S.C. § 1915A, a court must dismiss claims barred by the relevant statute of limitations. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995). Because no explicit statute of limitations for 42 U.S.C. § 1983 actions exists, federal courts borrow the personal injury statute of limitations from the relevant state. Id. at 955 (citing Wilson v. Garcia, 471 U.S. 261, 266-69, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) ). Virginia applies a two-year statute of limitations to personal injury claims. See Va. Code Ann. § 8.01-243(A). Thus, plaintiff was required to file his complaint within two years from when the underlying claims accrued.
When a § 1983 claim accrues, however, is dictated by federal law. See Nasim, 64 F.3d at 955. "A claim accrues when the plaintiff becomes aware of his or her injury, United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), or when he or she ‘is put on notice ... to make reasonable inquiry’ as to whether a claim exists." Almond v. Sisk, No. 3:08cv138, 2009 WL 2424084 *4, 2009 U.S. Dist. LEXIS 68668 *9-10 (E.D. Va. Aug. 6, 2009) (quoting Nasim, 64 F.3d at 955 ), aff'd, 372 F. App'x 432 (2010). Here, it is plain on the face of the complaint that this action is barred by the statute of limitations. Plaintiff signed the complaint on April 4, 2021 [Dkt. No. 1 at 6], which is over seven years after his trial.
By his own admission, supra at note 2, plaintiff knew about the facts giving rise to the two claims raised herein on or about December 15, 2017, which is more than two years before he signed the present complaint.
Accordingly, it is hereby
ORDERED that this action be and is DISMISSED, WITH PREJUDICE, for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1) ; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(g), this dismissal may affect plaintiff's ability to proceed in forma pauperis in future civil actions; and it is further
28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
ORDERED that the Clerk record this dismissal for purposes of the Prison Litigation Reform Act.
To appeal, plaintiff must file a written notice of appeal with the Clerk's Office within thirty (30) days of the entry of this Order, See Fed. R. App. P. 4(a). A written notice of appeal is a short statement stating a desire to appeal this Order and noting the date of the Order plaintiff wants to appeal. Failure to timely file a notice of appeal waives the right to appeal this decision. Plaintiff need not explain the grounds for appeal until so directed by the court.