Carstarphen v. Judge Robert Smith & Prosecutor Matthew Simpson

• Decision Date: 19 October 2016
• Docket Number: CIVIL ACTION NO. 16-00170-KD-N
• Parties: ANDRE CARSTARPHEN, SR., Plaintiff, v. JUDGE ROBERT SMITH and PROSECUTOR MATTHEW SIMPSON, Defendants.
• Court: U.S. District Court — Southern District of Alabama

ANDRE CARSTARPHEN, SR., Plaintiff, v. JUDGE ROBERT SMITHand PROSECUTOR MATTHEW SIMPSON, Defendants.

CIVIL ACTION NO. 16-00170-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

October 19, 2016

REPORT AND RECOMMENDATIONS

This action is before the Court on the Defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction or, alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Docs. 10, 11). Plaintiff Andre Carstarphen, Sr. (hereinafter, "the Plaintiff"), proceeding pro se, has filed no response in opposition to the motions, and the deadline to do so has passed (see Doc. 12). However, prior to the Defendants' filing the motions to dismiss, the Plaintiff filed a document entitled "Motion to Release Andre Carstarphen jr. immediately" (Doc. 5), which he has recently supplemented (see Docs. 14, 15).

Under S.D. Ala. GenLR 72(b), these motions have been referred to the undersigned Magistrate Judge for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR 72(a)(2)(S). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that the Plaintiff's "Motion to Release Andre Carstarphen jr. immediately" (Docs. 5, 14) be DENIED and that the Defendants' motions to dismiss (Docs. 10, 11) be GRANTED under Federal Rule of Civil Procedure 12(b)(6).

I. Legal Standards

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) ((citation and quotations omitted)). "Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quotation omitted).

In deciding a motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted," the Court must construe the complaint in the light most favorable to the Plaintiffs, "accepting all well-pleaded facts that are alleged therein to be true." E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). "Fed. R. Civ. P. 8(a)(2) requires that a pleading contain 'a short and plain statement of the claim showing that the pleader is entitled to relief' in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation omitted). " 'While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will notdo.' " Id. at 1289 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). A complaint's " '[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).' " Id. (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion to dismiss, a complaint must now contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly, 550 U.S. at 570). While this "plausibility standard is not akin to a 'probability requirement' at the pleading stage, ... the standard 'calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the claim." Id. (quoting Twombly, 550 U.S. at 556).

Moreover, " 'the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.' " Id. at 1290 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under the plausibility standard, " 'where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show [n]"—"that the pleader is entitled to relief." ' " Id. (quoting Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2))). Iqbal "suggested that courts considering motions to dismiss adopt a 'two-pronged approach' in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.' " Id. (quoting Iqbal, 556U.S. at 679). "Importantly, ... courts may infer from the factual allegations in the complaint 'obvious alternative explanation[s],' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Id. (quoting Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 567)). "[G]enerally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may dismiss a complaint on a rule 12(b)(6) motion when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint." Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993) (quotation omitted)).

"Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms, 'facial' and 'factual' attacks. Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, and the district court takes the allegations as true in deciding whether to grant the motion. Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings." Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citations omitted) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam)). Because neither of the Defendants presents any extrinsic evidence in support of dismissal under Rule 12(b)(1), their attacks on subject matter jurisdiction are "facial" only.

II. Analysis

a. Motion for Release

Liberally construing the "Motion to Release Andre Carstarphen jr. immediately" (Docs. 5, 14, 15) and the Complaint (Doc. 1), the Plaintiff appears to be asserting claims under 42 U.S.C. § 1983 (for instance, he has requested money damages) and requesting habeas relief for Carstarphen Jr. and others under 28 U.S.C. § 2254 (i.e., he requests immediate release of Carstarphen Jr. and other named individuals), on the basis of alleged prosecutorial and judicial misconduct during Carstarphen Jr.'s criminal proceedings in the Circuit Court of Mobile County, Alabama.

To the extent Carstarphen Sr. asserts claims under § 1983, immediate release of a state prisoner from confinement is not available as a remedy under that provision. See Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) ("[A] § 1983 action will not lie when a state prisoner challenges 'the fact or duration of his confinement,' and seeks either 'immediate release from prison," or the 'shortening' of his term of confinement." (citations omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 482, 489 (1973))); D.D. ex rel. Dabney v. Niles, 615 F. App'x 654 (11th Cir. 2015) (per curiam) (unpublished) ("D.D. and his parents brought this suit under 42 U.S.C. § 1983 challenging his detention by the Georgia Department of Juvenile Justice ('DJJ') ... Regardless of how the Appellants frame the claims, both claims—D.D.'s own claim (Count Two) and his parents' claim based on their parental rights (Count One)—are, in their essential nature, challenges to D.D.'s detention. Therefore, theappropriate method to challenge D.D.'s detention is to seek a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S. Ct. 1827, 1836, 36 L. Ed. 2d 439 (1973) ('Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.')."), cert. denied, 136 S. Ct. 1173 (2016).

To the extent the Plaintiff is asserting habeas and/or § 1983 claims on behalf of Carstarphen Jr. and/or others, he has not shown he is entitled to do so. Nothing in the record indicates that the Plaintiff can represent these other individuals in a representative capacity, see Fed. R. Civ. P. 17, and generally a party may only "plead and conduct their own cases personally or by counsel..." 28 U.S.C. § 1654. See also S.D. Ala. GenLR 83.2 ("Unless appearing pro se or through counsel under General Local Rule 83.3(f) or (g), all parties to proceedings in this Court must appear by an attorney admitted to practice in this Court."). There is no indication that the Plaintiff is a licensed attorney (certainly not one who has been admitted to practice in this Court).

In this Circuit,

[i]t is well settled that with one narrow exception only licensed lawyers may represent others in court...:

"There is no constitutional guarantee that non-attorneys may represent other people in litigation. There is a narrow exception to this conclusion: a jail-house lawyer may help fellow prisoners file initial papers in habeas corpus actions when the state has failed to provide alternative aid to such prisoners in seeking post-conviction relief. See Johnson v. Avery, 1969, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718. Thisexception results from two factors: (1) special concern for the right to seek the writ of habeas corpus, one aspect of the general rule that individuals deprived of liberty by the state have greater rights to state-supplied attorneys and other necessary

...