United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
U.S.C. §1983 proceeding was filed in forma
pauperis (“IFP”) by pro se
Plaintiff, Anthony Farrier, against Defendants, Judge Robin
Pittman of the Criminal District Court for the Parish of
Orleans and Warden Darryl Vannoy of the
Louisiana State Penitentiary (“LSP”) in Angola,
Louisiana. (Rec. docs. 4, pp. 1, 3; 6).
is an inmate of the LSP who is serving a sentence of 75
years, the first 25 of which are to be served without benefit
of parole, probation, or suspension of sentence, following
his January 9, 2014 conviction for sexual battery of a victim
under the age of 13 in the Criminal District Court for the
Parish of Orleans.1/ As his statement of claim herein,
Plaintiff alleges as follows:
Plaintiff, Anthony Farrier, is being denied of his liberty,
by Judge Robin Pittman and Warden Darryl Vannoy, in violation
of Plaintiff's Sixth Amendment Equal Protection through
the Fourteenth Amendment Bill of Rights provision. See
additional pages attached.
(Rec. doc. 4, p. 4).
of a handwritten “Additional Statement[ ], ”
Plaintiff goes on to argue that the evidence adduced at his
trial was insufficient to support a guilty verdict under the
Jackson tandard. (Id. at p. 6). In
addition to the minutes from his trial and sentencing, the
former of which reflect that he was found guilty by a
non-unanimous jury after one hour and 35 minutes of
deliberations, Plaintiff also attaches to his complaint a
copy of a counseled motion for post-verdict judgment of
acquittal premised on Jackson and Judge
Pittman's order denying that motion three days before his
sentencing. (Rec. docs. 4-1 to 4-3). In his prayer for
relief, Plaintiff asks that this Court reverse Judge
Pittman's denial of his post-verdict motion and enter a
judgment of acquittal, as his guilty verdict was essentially
found to be sufficient by a judge rather than a jury, thus
denying him of his Sixth and Fourteenth Amendment rights.
(Rec. doc. 1, pp. 7-8). In his recently-filed amended
complaint, Plaintiff reiterates that the post-trial motion
practice employed by Judge Pittman allows the state to affirm
convictions by “masquerading” them as
sufficiency-of-evidence questions in derogation of his Sixth
Amendment jury-trial rights. (Rec. doc. 7).
noted above, Plaintiff is proceeding in forma
pauperis in this matter pursuant to 28 U.S.C.
§1915. (Rec. doc. 3). As directed by that statute,
courts are to dismiss such matters at any time it is
determined, inter alia, that the action is
“… frivolous or malicious …” 28
U.S.C. §1915(e)(2)(B)(i). See also 28 U.S.C.
§1915A(b)(1), 42 U.S.C. §1997e(c)(1). A complaint
is frivolous if the claims alleged therein have no arguable
basis in law or fact. Booker v. Koonce, 2 F.3d 114,
115 n. 6 (5th Cir. 1993). A complaint is malicious if the
claims presented therein have already been asserted by the
plaintiff in a pending or previous lawsuit against the same
or different defendants. Bailey v. Johnson, 846 F.2d
1019, 1021 (5th Cir. 1988). Although
“frivolous” precedes “malicious” in
the aforementioned statute, those two bases of dismissal will
be addressed in opposite order.
Farrier v. Pittman, et al., No. 18-CV-11524
“F” (1), a case that was pending before another
section of the court, Plaintiff sued Judge Pittman, Warden
Vannoy, and Orleans Parish District Attorney Leon Cannizzaro
under §1983, alleging that his non-unanimous jury
verdict deprived him of his Sixth and Fourteenth Amendment
rights. (No. 18-CV-11524, rec. doc. 3). Following the
issuance of a Report and Recommendation by the assigned
Magistrate Judge, on February 1, 2019, judgment was entered
dismissing that matter with prejudice until such time as the
conditions set forth in Heck were met. (Id.,
rec. docs. 6, 9, 10). That judgment has now become final.
claims that Plaintiff makes in this matter closely parallel
those that he made in his previous §1983 action against
Judge Pittman, Warden Vannoy, and DA Cannizzaro. A complaint
is malicious and subject to dismissal under
§1915(e)(2)(B)(i) “… when it
‘duplicates allegations of another pending federal
lawsuit by the same plaintiff' or when it raises
claims arising out of a common nucleus of operative facts
that could have been brought in the prior
litigation.” McGill v. Juanita Kraft Postal
Services, No. 03-CV-1113, 2003 WL 21355439 at *2 (N.D.
Tex. June 6, 2003), adopted, 2003 WL 21467745 (N.D.
Tex. June 18, 2003)(emphasis added)(quoting Pittman v.
Moore, 980 F.2d 994, 994-95 (5th Cir. 1993)). The
rationale behind these decisions is that the privilege of
proceeding in forma pauperis at government expense
does not entitle a plaintiff to a second “… bite
at the litigation apple …” with respect to
claims arising out of a common set of facts. Pittman v.
Moore, 980 F.2d 994, 995 (5th Cir. 1993). As
Plaintiff's previous §1983 action is no longer
pending, the dismissal in this case of his renewed claims
against Judge Pittman and Warden Vannoy should be with
only is this action malicious, it is also frivolous. With
respect to the first-named Defendant, Judge Pittman, the
alleged the conduct of which Plaintiff complains concerns the
manner in which the Judge handled a case pending before her,
namely, Plaintiff's state-court criminal proceeding. Such
conduct is clearly judicial in nature, triggering the
application of judicial immunity. Jones v. Judge of the
129th, Harris County District Court, 113 Fed.Appx. 603,
604 (5th Cir. 2004)(citing Boyd v.
Biggers, 31 F.3d 279, 285 (5th Cir. 1994)).
As such, Plaintiff's §1983 claim against Judge
Pittman in her individual capacity fails due to the absolute
judicial immunity that the Judge enjoys. Stump v.
Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978); Graves
v. Hampton, 1 F.3d 315, 317-18 (5th Cir. 1993). Further,
any such claim brought against Judge Pittman in her official
capacity fails for two reasons. First, the Judge is a state
official and state officials acting in that capacity are not
considered to be “persons” within the meaning of
§1983. Washington v. Louisiana, No. 09-CV-3186,
2009 WL 2015556 at *5 (E.D. La. Jun. 30, 2009). Second,
because an official-capacity claim against the Judge is, in
reality, a claim against the state itself, any such claim is
barred by the Eleventh Amendment. Voisin's Oyster
House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir.
1986); Doris v. VanDavis, No. 08-CV-4138, 2009 WL
382653 at *2 (E.D. La. Feb. 12, 2009).
to Warden Vannoy, he obviously had nothing whatsoever to do
with the outcome of or rulings made in Plaintiff's state
criminal proceeding. Absent facts establishing personal
involvement on the Warden's part, there is simply no
valid basis upon which to hold him liable under §1983 in
his individual capacity. Allen v. Gusman, No.
05-CV-1633, 2006 WL 286007 at *3 n. 8 (E.D. La. Feb. 2,
2006)(citing Thompson v. Steele, 709 F.2d 381, 382
(5th Cir. 1983)). Construing Plaintiff's §1983 claim
as having been brought against the Warden in his official
capacity, Plaintiff fares no better because of the sovereign
immunity that the Warden enjoys, Champagne v. Jefferson
Parish Sheriff's Office, 188 F.3d 312, 313-14
(5th Cir. 1999), and because state officials like
the Warden who are acting in their official capacity are not
considered to be “persons” within the meaning of
§1983. Will v. Michigan Dept. of State Police,
491 U.S. 58, 109 S.Ct. 2304 (1989); Anderson v.
Phelps, 655 F.Supp. 560, 563-64 (M.D. La. 1985).
as was pointed out to Plaintiff in his previous §1983
action against Judge Pittman and Warden Vannoy (No.
18-CV-11524, rec. doc. 6, pp. 2-3), unless and until
Plaintiff is able to have his conviction declared invalid by
a state or federal tribunal authorized to make such a
determination, no §1983 claim respecting alleged
improprieties in his criminal trial comes to fruition.
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364
(1994); Walton v. Parish of LaSalle, 258 Fed.Appx.
633, 633-34 (5th Cir. 2007); Collins v.
Ainsworth, 177 Fed.Appx. 377, 379 (5th Cir. 2005),
cert. denied, ___U.S.___, 126 S.Ct. 1661 (2006).
Claims which are so barred by Heck are legally
frivolous. Kingery v. Hale, 73 Fed.Appx. 755 (5th
Cir. 2003); Hamilton v. Lyons, 74 F.3d 99, 102
(5th Cir. 1996).