United States District Court, W.D. Louisiana, Monroe Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
Cary Ellis Malone (“Malone”), proceeding pro se
and in forma pauperis, filed a civil rights
complaint under 42 U.S.C. § 1983 on May 31, 2017. (Doc.
1). Malone names as Defendants Jonathan D. Campbell, Monroe
Police Department (“Campbell”),  Holly Chambers
Jones, Assistant District Attorney (“Jones”),
George Britton, Ouachita Parish Public Defender's Office
(“Britton”), and Jay Nolan, Ouachita Parish
Public Defender's Office (“Nolan”)
(“Defendants”). Nolan filed a Motion to Dismiss
(Doc. 9) under 28 U.S.C. § 1915 and Federal Rule of
Civil Procedure 12(b)(6). Jones filed a Motion to Dismiss for
Failure to State a Claim and Alternatively Motion for Summary
Judgment (Doc. 18) under Federal Rule of Civil Procedure
12(b)(6), and alternatively, Federal Rule of Civil Procedure
56. Because it is frivolous, Malone's Complaint should be
dismissed with prejudice.
claims Officer Chapman of the City of Monroe Police
Department presented a falsified an affidavit of probable
cause to arrest plaintiff without a warrant to the Fourth
Judicial District Court. (Doc. 1). At a preliminary hearing
on August 6, 2014, in Criminal Docket Number 12-F3385, Malone
claims Assistant District Attorney Jones “supported and
represented the falsified information presented to the
Court” by Chapman. (Doc. 1). Malone claims both Chapman
and Jones perpetuated the false statement that “Malone
advised he had some crack in the back of his truck in a bag,
” while withholding the fact that another individual,
Joseph Swan (“Swan”), was present at the time of
the investigation and stated that he was the one who put the
drugs in the back of Malone's truck. (Doc. 1). Malone
alleges Jones misled the Court regarding a Crime
Stopper's report, which did not actually exist, and that
his court-appointed attorney, Britton, did not object to that
“fabrication” of facts. (Doc. 1).
claims that on March 25, 2015, seven months after the
preliminary hearing, Judge Larry Jefferson conducted a
Boykin examination. Malone alleges Nolan was
appointed to represent him. (Doc. 1) Malone claims that
Defendants acted together to deprive him of his liberty
without due process by the use of falsified information.
(Doc. 1). Malone alleges Jones committed fraud upon the Court
in her “factual basis for the plea, ” and once
again withheld information regarding Swan's role in the
matter. (Doc. 1). Malone claims Nolan failed to object. (Doc.
further claims that even after the Court refused to accept
his guilty plea, Nolan convinced the Court that a guilty plea
was in Malone's best interest.(Doc. 1). Malone alleges
Nolan provided ineffective assistance of counsel. (Doc. 1).
Malone took an Alford plea to possession of a
Controlled Dangerous Substance on March 25, 2015 with a
one-year at hard labor sentence, credit for time served, to
run concurrent to a 2008 matter, Criminal Docket Number
08-F1745. (Doc. 1-2).
Law and Analysis
Malone's Complaint is subject to screening under 28
U.S.C. § 1915(e)(2).
1915(h) defines “prisoner” as “any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for or adjudicated delinquent for,
violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915(h). Malone is not a
prisoner. However, because he has been allowed to proceed
in forma pauperis, Malone's Complaint is also
subject to screening under § 1915(e)(2). Section
1915(e)(2)(B) provides for sua sponte dismissal of
the Complaint, or any portion thereof, if the Court finds it
is frivolous or malicious, if it fails to state a claim on
which relief may be granted, or if it seeks monetary relief
against a defendant who is immune from such
1915(e)(2)(B) applies equally to prisoner as well as
non-prisoner in forma pauperis cases. See
Newsome v. Equal Employment Opportunity Commission, 301
F.3d 227, 231-33 (5th Cir. 2002) (affirming dismissal of
nonprisoner claims for frivolity and failure to state a claim
under § 1915(e)(2)(B)(i) and (ii)); Cieszkowska v.
Gray Line New York, 295 F.3d 204, 205-206 (2nd Cir.
2002) (affirming dismissal of in forma pauperis
non-prisoner case for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)). If plaintiff is a prisoner, then
28 U.S.C. § 1915A governs; if he is not, then 28 U.S.C.
§ 1915(e)(2)(B) applies. The same analysis would be
involved in either case. See Mazzaglia v. State, 229
F.3d 1133 (1st Cir. 2000).
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Nietzke v.
Williams, 490 U.S. 319 (1989). A claims lacks an
arguable basis in law when it is “based on indisputably
meritless legal theory.” Id. at 327. While
district courts are required to construe in forma
pauperis complaints liberally, particularly in the
context of dismissals under § 1915(e)(2)(B), they are,
nonetheless, given broad discretion in determining when such
complaints are frivolous. Macias v. Raul A. (Unknown)
Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A
district court is “not free to speculate that the
plaintiff ‘might' be able to state a claim if given
yet another opportunity to add more facts to the
complaint.” Id. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. Iqbal, 556 U.S. at 679. A
complaint fails to state a claim upon which relief may be
granted when it fails to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
Malone's Complaint should be barred as
it is clear from the face of a complaint filed in forma
pauperis that the claims asserted are barred by the
applicable statute of limitations, those claims are properly
dismissed, ” pursuant to § 1915(e)(2)(B)).
Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994);
Gartrell v. Gaylor,981 F.2d 254, 256 (5th Cir.
1993). A district ...