Banks v. Loretta Lynch, Gerardo S. Gutierrez, Paul G. Christenson, Alok A. Kale, Edgar L. Howard, Matthew R. Siegler, Preston Humphrey, Humphrey, Siegler & Kale, LLC
| Decision Date | 26 September 2016 |
| Docket Number | Case No. 16-cv-00935-JPG |
| Court | U.S. District Court — Southern District of Illinois |
| Parties | ROBERT R. BANKS, #05834-025, Plaintiff, v. LORETTA LYNCH, GERARDO S. GUTIERREZ, PAUL G. CHRISTENSON, ALOK A. KALE, EDGAR L. HOWARD, MATTHEW R. SIEGLER, PRESTON HUMPHREY, HUMPHREY, SIEGLER & KALE, LLC, MELISSA A. DAY, RICHARD H. PARSONS, PHILLIP J. KAVANAUGH, and JUDITH A. KUENNEKE, Defendants. |
Plaintiff Robert Banks is currently in the custody of the United States Bureau of Prisons at the Federal Correctional Institution located in Oakdale, Louisiana. He filed this action pro se pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In the complaint, Plaintiff alleges that his constitutional rights were violated by federal officials in connection with his underlying conviction and sentence for several drug-related offenses in the United States District Court for the Southern District of Illinois (Doc. 1, pp. 1-6). More specifically, Plaintiff asserts that his sentence was erroneously enhanced under 21 U.S.C. § 851 (id.). Plaintiff now names the United States Attorney General, seven criminal defense attorneys, two federal public defenders, and two assistant federal public defenders for violating his Fifth Amendment right to due process of law and his Eighth Amendment right to be free from cruel and unusual punishment. He seeks monetary damages, injunctive relief, and declaratory judgment against them (id.).
This case is before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro secomplaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). Plaintiff's complaint does not survive screening under this standard and shall therefore be dismissed.
According to the complaint, Plaintiff was charged with several drug-related crimes in this District on or around March 4, 2003 (Doc. 1, p. 4). The Government filed an "Information to [E]stablish [P]rior [C]onviction" pursuant to 21 U.S.C. § 851 on November 6, 2004, and Plaintiff entered a Notice of Conditional Plea on November 8, 2004 (id.). Over the objections of his attorney, Plaintiff was sentenced to 360 months of imprisonment on or around July 27, 2005 (id. at 5). This was allegedly the maximum allowable sentence for a defendant with one prior conviction (id.).
But Plaintiff insists that he had no prior criminal convictions. On July 29, 2005, he filed a direct appeal to challenge the enhanced sentence. The Court appointed Richard Parsons to represent Plaintiff in his appeal. Attorney Parsons never raised this argument on Plaintiff's behalf (id.).
Plaintiff filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.1 Plaintiff then filed an application for leave to file a second or successive § 2255 motion on or around March 26, 2016. In it he argued that the sentencing court lacked jurisdiction toimpose an enhanced sentence based on false testimony.2 Less than a month later, the Seventh Circuit denied Plaintiff's application (id.).
The instant action followed. In his complaint, Plaintiff claims that false information regarding his prior criminal conviction resulted in an enhanced sentence and egregious violations of his rights under the Fifth and Eighth Amendments (id. at 5). Plaintiff blames the United States Attorney General and his own attorneys for these violations. He seeks monetary damages, injunctive relief, and declaratory judgment against them (id. at 6).
In Bivens, the Supreme Court recognized an implied private cause of action for damages against federal officials based on violations of a citizen's constitutional rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001). Claims brought against federal officers pursuant to Bivens are analogous to claims brought against state actors under 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2006). A complaint supports a § 1983 claim where a plaintiff alleges that (1) he had a constitutionally protected right; (2) he was deprived of that right in violation of the Constitution; (3) the defendant intentionally caused that deprivation; and (4) the defendant acted under color of state law. Cruz v. Safford, 579 F.3d 840, 843 (7th Cir. 2009); Schertz v. Waupaca Cnty., 875 F.2d 578, 581 (7th Cir. 1989). In both contexts, a plaintiff must allege that the official was personally involved in a violation of his constitutional rights and acted with the requisite state of mind.
In his complaint, Plaintiff does not allege that anyone, other than Attorney Parsons, was personally involved in a violation of his constitutional rights. Plaintiff also names Loretta Lynch (United States Attorney General), Gerardo Gutierrez (defense counsel), Paul Christenson(defense counsel), Alok Kale (defense counsel), Edgar Howard (defense counsel), Matthew Siegler (defense counsel), Preston Humphrey (defense counsel), Humphrey, Siegler & Kale, LLC (defense firm), Phillip Kavanaugh (federal public defender), Melissa Day (assistant federal public defender) and Judith Kuenneke (assistant federal public defender) as defendants in the caption of the complaint and in the list of defendants. However, he makes no allegations against them in the statement of claim.
Plaintiffs are required to associate specific defendants with specific claims to put defendants on notice of the claims brought against them and to enable the defendants to properly answer the complaint. See Twombly, 550 U.S. at 555; FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said to be adequately put on notice of which claims in the complaint, if any, are directed against him. Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
Plaintiff must instead allege that each official was personally involved in a violation of his constitutional rights. In the case of defendants who are in supervisory positions, the doctrine of respondeat superior is not applicable to Bivens actions. McCree v. Sherrod, 408 F. App'x 990 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 678; see also Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996); Del Raine v. Williford, 32 F.3d 1024, 1038 (7th Cir. 1994)). Plaintiff must likewise show that these defendants violated his constitutional rights.
The complaint suggests that no one, other than Attorney Parsons, was personally involved in a Fifth or Eighth Amendment deprivation. Absent any mention of Defendants Lynch, Gutierrez, Christenson, Kale, Howard, Siegler, Humphrey, Day, Kavanaugh, Kuenneke, and Humphrey, Siegler & Kale, LLC, Plaintiff has failed to state a claim against thesedefendants. Accordingly, all defendants, other than Defendant Parsons, are subject to dismissal on this basis alone.
Plaintiff's claim against Attorney Parsons fares no better. According to the allegations, this attorney was appointed by the Court to represent Plaintiff in his direct criminal appeal. Plaintiff faults Attorney Parsons for failing to challenge his enhanced sentence in the direct appeal.
Defense attorneys are not considered state actors under § 1983 or federal actors under Bivens, even when they are appointed by the Court. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (); Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984) (); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (). In light of this precedent, Plaintiff's claim against Attorney Parsons shall be dismissed with prejudice for failure to state a claim upon which relief may be granted and as legally frivolous. Plaintiff...
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