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Malone v. Campbell

United States District Court, W.D. Louisiana, Monroe Division

December 11, 2017

CARY ELLIS MALONE, Plaintiff
v.
JONATHAN D. CAMPBELL, ET AL., Defendants

          JAMES JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge.

         Plaintiff 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”), [1] 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.

         I. Background

         Malone 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).

         Malone 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. 1).

         Malone 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.[2](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).

         II. Law and Analysis

         A. Malone's Complaint is subject to screening under 28 U.S.C. § 1915(e)(2).

         Section 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 relief.[3]

         Section 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).

         A 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 (2007).

         B. Malone's Complaint should be barred as untimely.

         “Where 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 ...


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