Critten v. Nahmias et al, No. 1:2009cv02753 - Document 7 (N.D. Ga. 2009)

Court Description: OPINION and ORDER. Plaintiff's two motions to amend 2 and 4 are GRANTED. This amended pro se civil rights complaint is DISMISSED. Plaintiff's motion to compel 3 is DENIED. Signed by Judge Charles A. Moye, Jr on 12/10/09. (bse)
Download PDF
RED IN CLERK S OFFICE U .S .D,C . Atlanta DEC 10 2009 .lAME~ ATT EN , Clerk voo todoa 14 e!r 1a 1Ma' N3.UbM "NSJWYf IN THE UNITED STATES DISTRICT C OURT FOR THE NORTHERN DISTRICT OF GEORGIA 6npZ 0 I J3Q ATLANTA DIVISION u g1311 ` ay' S ¢ f1 33IJ1410 &313 NI Qmij LORENZO T . CRITTEN, GDC NO. 1163890, PRISONER CIVIL RIGHTS 42 U.S.C. § 1983 Plaintiff, v. CIVIL ACTION NO . 1 :09-CV-2753-CAM DAVID E . NAHMIAS ; JUDGE MICHAEL E . HANCOCK ; RICHARD REED; BOB HOUMAN ; GAYLE D . BACON; KEN DIGGS ; D . A. FANCESA ; JOHN MUMFORD ; CHRIS TAYLOR ; and WARREN SUMMER, Defendants . ORDER AND OPINION Plaintiff, who has paid the $350 .00 filing fee, has filed the instant fro se civil rights complaint, two motions to amend the complaint, and a motion to compel . The matter is presently before this Court for a 28 U .S .C . § 1915A frivolity determination . I. The Standard of Review Pursuant to 28 U .S .C . § 1915A(a), a federall court is required to screen "as soon as practicable" a prisoner complaint "which seeks redress from a AO 72A (Rev . 8/82) governmental entity or officer or employee of a governmental entity ." Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is either : (1) "frivolous, malicious, or fails to state a claim upon which relief may be granted" ; or (2) "seeks monetary relief from a defendant who is immune from such relief." In order to state a claim for relief under 42 U .S.C . § 1983, a plaintiff must satisfy two elements . First, a plaintiff must allege that an act or omission deprived him "of some right, privilege, or immunity secured by the Constitution or laws of the United States ." Hale v . Tallapoosa County, 50 F .3d 1579, 1582 (l lth Cir . 1995) . Second, a plaintiff must allege that the act or omission was committed by "a person acting under color of state law ." Id . If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of the claim, then the complaint is subject to dismissal, pursuant to 28 U .S.C. § 1915A . See Ashcroft v . Iqball, _ U .S . _, 129 S. Ct . 1937, 1949 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ."); Bell Atlantic Corp . v . Twombly, 550 U .S . 544, 570 (2007) (more than merely "conceivable," the "complaint must be dismissed" when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face") ; 2 AO 72A (Rev .8/82) Pap asan v . Allain, 478 U .S . 265, 286 (1986) (the court accepts as true the plaintiff's factual contentions, not his or her legal conclusions that are couched as factual allegations) . II . Discussion Plaintiff, who contends that he is a secured party creditor, alleges that police officers from Rockdale County and DeKalb County violated his constitutional rights by having him arrested, detained, questioned and searched . (Doc . 1 at ¶ IV .) In support, Plaintiff claims the officers searched and arrested him without a warrant or an arraignment . (Id .) Plaintiff also claims that he was not brought before a magistrate judge "without unreasonable or unnecessary delay," and the police officers failed to disclose that Plaintiff's arrest involved a commercial entity. (Id .) Plaintiff also alleges that the grand jury conspired with the state and its agents to deprive him of his rights under the Constitution . (Id., attachment to ¶ IV .) Plaintiff alleges further that his court appointed attorneys, Defendants Gayle D . Bacon and Ken Diggs, conspired with the state and its agents by coercing him to plead guilty . In his first motion to amend, Plaintiff alleges that all Defendants are guilty of fraud by failing to disclose his secured creditor status . (Doc. 2 at 1-2 .) In his 3 AO 72A (Rev . 8/ 82) second motion to amend, Plaintiff alleges that DeKalb County District Attorney Flemming and Linda Carter, Clerk of the Superior Court of DeKalb County, failed to provide him with a copy of his indictment . (Doc . 4 at 1 .) Plaintiff maintains that the indictment "is the property of the Secured Party ." (Id. at 2 .) In his original complaint, Plaintiff seeks his release from custody and to be awarded $25,000,000 .00 in damages . (Doc . 1 at ¶ V .) In his motion to compel, Plaintiff requests a federal jury trial and an order directing the Clerk of the Superior Court of DeKalb County to forward him a copy of the indictment . (Doc . 3 at 1 .) "Challenges to the lawfulness of confinement or to particulars affecting its durationn are the province of habeas corpus ." Muhammad v . Close, 540 U .S . 749, 750 (2004) (per curiam) . "[R]equests for relief turning on circumstances of confinement may be presented in a § 1983 action ." Id. at 750 . Importantly, release from custody is not an available remedy in a civil rights action . Preiser v . Rodri guez, 411 U.S . 475, 479 (1973). As Plaintiff's complaint fails to comply with various sections of Rule 2 of the Rules Governing Section 2254 Cases, this Court should not re-file it as a federal habeas corpus petition . 4 AO 72A ( Rev. 8/82) Plaintiff also seeks money damages for his arrest and detention . The Supreme Court has held that a plaintiff must first show that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus pursuant to 28 U .S .C. § 2254 before he can recover money damages in a civil rights action related to his state criminal case . Heck v . Humphre~, 512 U .S . 477, 486-487 (1994) ; Antonelli v. Foster, 104 F .3d 899, 901 (7th Cir . 1997) (applying Heck to suits "premised as here on the invalidity of confinement pursuant to some legal process, whether a warrant, indictment, information, summons, parole revocation, conviction or other judgment") ; Smithart v . Towerv, 79 F .3 d 951, 952 (9th Cir. 1996) ("There is no question that Heck bars [plaintiff's] claim that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him .") . Plaintiff has failed to allege facts which show that he has satisfied the preconditions set forth in Heck for pursuing money damages related to his conviction . In so concluding, this Court also notes that Plaintiff has failed to allege more than conclusory claims that his arrest was the result of an illegal search and 5 AO 72A (Rev . 8/82) seizure . Such conclusions fail to show that his claim of illegal search and seizure "even if successful, will not [also] demonstrate the invalidity of any outstanding criminal judgment against" him . Heck, 512 U .S . at 487 ; Datz v . Kil~;ore, 51 F .3d 252, 254 (1 lth Cir . 1995) (finding that Heck claim concerning constitutionality of search "is inextricably intertwined with the state court judgment ; and the federal suit is barred") A civil rights action barred by Heck, should be dismissed "with prejudice ." Abella v . Rubino, 63 Fad 1063, 1065 (llth Cir . 1995) . However, if Plaintiff "eventually satisfies the precondition to a valid claim under Heck," he is permitted to raise those claims in a new civil rights action . Id. at 165 n .3 . Plaintiff also claims that he was a secured party creditor at the time of hiss arrest . Plaintiff was convicted of two counts of murder which he committed in 2001 and 2002, and he was arrested on October 7, 2002 . (Doc . 1 at ¶ IV; .) Plaintiff's attached UCC Financing Statement shows that he took a security interest in himself on October 20, 2008 . (Doc. 1, attached UCC Financing Statement .) Thus, at the time of his arrest, Plaintiff was not a secured party creditor . 6 AO 72A (Rev . 8/82) Finally, Plaintiff seeks an order directing the Clerk of the Superior Court of DeKalb County to provide him a copy of the indictment . Plaintiff's request is "in the nature of mandamus ." 28 U.S.C . § 1361 . Federal mandamus is available only "to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." Id . Federal courts have no general power to issue writs of mandamus against State officials . Move v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir . 1973); Noe v . Metropolitan Atlanta Rapid Transit Authority, 485 F . Supp. 501, 504 (N.D . Ga. 1980), aff d, 644 F .2d 434 (5th Cir 1981) . This Court is, therefore, without authority to act on Plaintiff's request . III. Conclusion IT IS ORDERED that Plaintiff's two motions to amend [Does . 2 and 4] are GRANTED . This amended fro se civil rights complaint is DISMISSED. Plaintiff's motion to compel [Doc . 3] is D ENIED . IT IS SO ORD ERED , this ,6 _ day of , 2009 . CHARLES A . MOPE, JR . UNITED STATES DISTRICT JUDGE 7 AO 72A (Rev-8/82)