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Curry v. EMCF Staffs Host

United States District Court, S.D. Mississippi, Northern Division

April 15, 2014

JAMES CURRY, # T5448, Plaintiff,
v.
EMCF STAFFS HOST, ARP MEDICAL, COUNSELOR, I.L.A.P. ADMINISTRATION OFFICERS, SECURITY MDOC, LEE COUNTY, MONROE COUNTY, LEGAL ASSISTANCE PROGRAM, RAY RICE, WARDEN J. BUSCHER, CAPTAIN THOMAS, CAPTAIN DYKES, CAPTAIN MCDONALD, COUNSELOR GIBSON, JOYCE GRAHAM, NURSE DUFF, NURSE DUNN, NURSE JONES, NURSE SMITH, NURSE EVANS, OFFICER KING, LIEUTENANT MS. LEE, LIEUTENANT MR. LEE, COUNSELOR POWE, SERGEANT WILLIE, LIEUTENANT MASON, CASE MANAGER SMITH, COUNSELOR MOSES, COUNSELOR DUNN, TONYA HOUSTON, MICHAEL WHITE, UNIT MANAGER ANDERSON, UNIT MANAGER BENDER, UNIT MANAGER HOLLIS, UNIT MANAGER DAVIS, OFFICER MCNEIL, SERGEANT TELFOR, OVEN LOWE, MITCHELL DOOMER, OFFICER EVANS, COUNSELOR NAYLOR, CAPTAIN WOOTEN, SERGEANT DALANIE, SERGEANT BROWN, LIEUTENANT HOGGIE, CASE MANAGER KELLY, and COUNSELOR NICKSON, Defendants.

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL

CARLTON W. REEVES, District Judge.

This matter is before the Court sua sponte for consideration of dismissal. Pro se Plaintiff James Curry is incarcerated with the Mississippi Department of Corrections. He filed this action for damages, injunctive, and habeas relief, challenging his conditions of confinement, his convictions, and sentences. The Court has considered and liberally construed the pleadings. As set forth below, Defendants Lee and Monroe Counties, Warden J. Buscher, Captains Thomas and McDonald, Counselor Gibson, Joyce Graham, Officer King, Sergeant Willie, Case Manager Smith, Michael White, Officer McNeil, Sergeant Telfor, Counselor Naylor, Captain Wooten, Sergeants Dalanie and Brown, Lieutenant Hoggie, Case Manager Kelly, and Counselor Nickson are dismissed.

BACKGROUND

Curry was convicted of possession of cocaine in both Lee and Monroe Counties. Curry v. Miss. Dep't of Corrs., No. 3:13cv76-FKB at 1-2 (S.D.Miss. June 7, 2013) (" MDOC I "). Judge Jim Pounds presided over both cases. Id. at 2. Now, Curry is incarcerated at East Mississippi Correctional Facility.

Curry initiated this action on December 31, 2013, challenging the conditions of his confinement at the prison and also challenging his convictions and sentences. He claims that the Counties wrongfully convicted him in violation of his right to effective assistance of counsel and a speedy trial. He also claims these Defendants did not credit his sentence with time served, pretrial.

As for Curry's present incarceration at EMCF, he sues the remaining Defendants for a myriad of claims. Some of these remaining Defendants include Buscher, Thomas, McDonald, Gibson, Graham, King, Willie, Case Manager Smith, White, McNeil, Telfor, Naylor, Wooten, Dalanie, Brown, Hoggie, Kelly, and Nickson. As is relevant to them, Curry alleges he was denied a mattress, soap, toilet tissue, clothes, and a shower, and was confined to a dirty cell with no cleaning supplies, no light, and with water constantly on the floor. He also claims a failure to protect him from fellow inmates. Some of these attacks are allegedly from gang members who have attacked him for not paying them money, and they are allegedly threatening to attack him again for the same reason. He also contends he was denied medical and mental health treatment. He complains that he was told that his grievances were backlogged. He contends that his legal mail was destroyed and property lost. Finally, he claims he was cursed and harassed. He asks the Court to grant him damages, transfer him to a prison in either Chickasaw or Monroe County, Mississippi, and correct his sentences.

This is not the first case in which Curry has brought these particular claims. In MDOC I, he brought the convictions claims against the Lee and Monroe County Circuit Courts and brought the sentence claims against the Lafayette County Jail. The courts were dismissed under judicial immunity, and all three were dismissed per Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 5-7. He brought the Lee County habeas claims in Curry v. Pounds, No. 1:13cv149-SA-DAS (N.D. Miss.), and that case is still pending. Finally, in Curry v. EMCF Host Remedies, No. 3:13cv1068-CWR-FKB (S.D.Miss.), the identical conditions claims were brought against individual Defendants listed previously. That case was filed prior to the instant case and is still pending before the undersigned.

DISCUSSION

The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in forma pauperis in this Court. One of the provisions reads, "the court shall dismiss the case at any time if the court determines that... the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). The statute "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Denton v. Hernandez, 504 U.S. 25, 32 (1992). "[I]n an action proceeding under [28 U.S.C. § 1915, a federal court] may consider, sua sponte, affirmative defenses that are apparent from the record even where they have not been addressed or raised." Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). "Significantly, the court is authorized to test the proceeding for frivolousness or maliciousness even before service of process or before the filing of the answer." Id. The Court has permitted Curry to proceed in forma pauperis in this action. His Complaint is subject to sua sponte dismissal under § 1915.

THE COUNTIES

Curry sues the counties of his convictions, alleging he was denied effective assistance of counsel, a speedy trial, and credit for time served. He seeks damages, under 42 U.S.C. § 1983, and release.

I. SECTION 1983

First the Court addresses the § 1983 claims for damages. As the Court previously found when Curry sued the state courts, "Because Curry attacks his convictions based on perceived flaws during the criminal proceedings, he is actually suing the trial judge." MDOC I, No. 3:13cv76-FKB at 4.

Moreover, the speedy trial and ineffective assistance claims against Judge Pounds have already been held to be barred by judicial immunity in this case. Id. This was a final judgment, which Curry did not appeal.

As for whether or not Judge Pounds sentenced Curry correctly, this claim is also about an action taken in the course and scope of Judge Pounds's role as judge over Curry's criminal cases. A judge enjoys absolute immunity from a civil action when performing within his judicial capacity. Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995). "Absolute immunity is immunity from suit rather than simply a defense against liability, and is a threshold question to be resolved as early in the proceedings as possible.'" Id. (quoting Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994)). Judicial immunity can be overcome only by a showing that the actions complained of were nonjudicial in nature, or by showing that the actions were taken in the absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11 (1991).

The Fifth Circuit Court of Appeals announced a four factor test to determine whether a judge acted within the scope of his judicial capacity. Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005). The four factors are:

(1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity.

Id. at 515. In applying the four factors to the facts alleged, it is clear that Judge Pounds is absolutely immune from this lawsuit. The decision as to what sentence to impose is clearly within the normal judicial function which arose out of his official capacity. Furthermore, there is no indication that his actions occurred outside the courtroom or his chambers. The controversy undisputedly centers around criminal cases pending before him. ...


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