Cotton v. Onderdonk

Decision Date10 November 2016
Docket NumberCIVIL ACTION NO. 16-00492-KD-B
PartiesAVEN H. COTTON, #177306, Plaintiff, v. MICHAEL ONDERDONK, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama
REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se, commenced this action by filing a Complaint under 42 U.S.C. § 1983 and paying the $400 filing fee. (Docs. 1, 2). This action is now before the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). Upon careful review of the Complaint, and Plaintiff's Amended Complaint (Docs. 1, 5), it is recommended that this action be dismissed without prejudice for lack of standing, or in the alternative, the Heck-barred claims be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and the remainder of the claims be dismissed without prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1).

I. Nature of Proceedings.

A. Complaint. (Doc. 1).

Plaintiff filed his Complaint on the Court's § 1983 complaint form and listed Defendants in the style of the action, not in Section III as the form directs. (Doc. 1 at 1, 4-5). Plaintiff names as Defendants, County Attorney and Assistant District Attorney Michael Onderdonk; District Attorney Robert Keahey, Sr.; Judge Richmond Pearson; Judge Hardie Kimbrough; Washington County Circuit Clerk Steven Grimes; Special Judge Thomas Norton; Notary Eunice Johnston; Judge Harold L. Crow; District Attorney Spencer Walker; Judge Robert Montgomery; Attorney Jerry Turner; and Judge Gaines McCorquodale. (Id. at 1, 9).1 Plaintiff indicates that his claims against theDefendants arose in 1987 and are continuing. (Id. at 4). As for his claims against each individual Defendant, Plaintiff again did not follow the form's directives to describe what each Defendant did to violate his rights and to follow that format on any additional pages. Instead, Plaintiff merely attached a narrative. (Id. at 5-6). This forces the Court to attempt to distill Plaintiff's claims from his narrative, which is unorganized and repetitive, and filled with conclusions of law and conclusory and vague allegations.

Plaintiff's form complaint does however contain a brief description alleging that Assistant District Attorney Onderdonk "stole" some land that Onderdonk thought belonged to the estate of Ellis Jordan after Jordan's widow died, but a title search revealed that Plaintiff Aven H. Cotton owned a portion of the land.2 (Id. at 4). Plaintiff claims that Onderdonk then filed a "civil case" against him, and that such constituted a "misuse of power, conspiracy, forgery, and illegal use of individual power to cover up this theft of property" and a "denial of due processof law." (Id. at 4-5). Plaintiff proceeds to disavow that he is "attacking the [his] convictions or sentence[s] in this 1983 U.S.C.[;] [but then he states] he is showing this Court, if it was not for the stolen land, with [the] forged signature, by Assistant District Attorney[,] [he] would not had even [to] c[o]me to prison, or now [be] kept [on] illegal or void sentences [be]cause of [the] pay-off from Onderdonk." (Id. at 6). For relief, Plaintiff requests that criminal charges, where appropriate, be brought against each Defendant of the judicial system, who was involved with the theft of property by [Onderdonk] and his co-conspirators. (Id. at 7). Additionally, Plaintiff requests the return of his land, or that he be paid for his land, and any damages the Court deems appropriate, including damages for misuse of power under state law. (Id.).

The narrative attached to Plaintiff's Complaint is titled, "Motion for the Court to Recognize Delay in Proceedings in This Civil Action Caused by the Courts, Judges, District Attorney, and Prior Probate Judge, and County Attorney Michael Onderdonk ("narrative")." (Id. at 15). To explain the delay in filing this action, Plaintiff states,

To the fact the Plaintiff has been trying to obtain a copy of the deed (Aven H. Cotton's deed) of the property in question since, 1987, when the case was not tried on November 18, 1987. [He] finally got verification copy of said Quit Claim Deed, (Exhibit-A) with the forged signature ofAvin H. Cotton, by County Attorney Michael Onderdonk in March, 2016.
The Courts will not allow Aven H. Cotton to possess a copy of the deed that . . . transferred title to Aven H. Cotton from Ellis Jordan to this land.

(Id. at 15-16). According to Plaintiff, his former attorney, Jerry L. Turner, and Onderdonk did not inform him that the civil case was settled with a Quitclaim Deed, prepared and executed by Onderdonk without Plaintiff's authorization. (Id. at 16). Plaintiff contends that when Thomas Goggans was representing him on a Rule 32 appeal (appeal No. CA 13-1165), during a visit, Goggans told Plaintiff that the reason he "could not get any justice on [his] illegal sentences, was because [he] owned some land, [and] that they needed a deed to [it.]" (Id.). Thereupon, Plaintiff hired someone to search the land records in Washington County Probate Office where a copy of the Quitclaim Deed with Plaintiff's "forged" signature was discovered, in addition to a subsequent warranty deed signed by Onderdonk selling the land, which was done instead of going to court. (Id.). Plaintiff deduces that "Onderdonk, would not had to have a deed in [Plaintiff's] name, if [Plaintiff's] true deed from Mr. Ellis Jordan was not valid." (Id.).

According to Plaintiff, he received a copy of the QuitclaimDeed with this forged signature in March, 2016.3 Thus, he contends that he is well within the two-year statute of limitations for an action under §§ 1983, 1985, and 1986 for a conspiracy and the denial of justice to keep him in prison on void sentences. (Id. at 17). However, Plaintiff has also attached a letter to this Court dated December 29, 2014, wherein, he requests the case number of his prior case in this Court in 1988 (CA No. 88-910-C). In the letter, Plaintiff states that he will be filing a "spin-off" of his prior lawsuit because he is being held on an illegal sentence. (Id. at 43 (Ex. A-4)). He also states that in May of that year (2014), he located the deed with his forged signature. (Id.).

In an attempt to organize Plaintiff's remaining factual allegations, the Court will describe them chronologically.According to Plaintiff, he and Mr. Ellis Jordan lived at the same residence for years during which time Plaintiff assisted Jordan with his business, as needed. (Id. at 21). Jordan surveyed 26 ½ acres for a home site for Plaintiff and had a deed prepared. (Id.). The deed was "placed . . . in a trust fund deed" because Jordan and his wife, Annie Jordan, were separated and she did not sign the deed. (Id.). Jordan told Plaintiff that he did not want the law firm of Turner, Onderdonk, and Howell handling his estate. (Id. at 22). "This is the reason [Plaintiff] know[s] . . . the land Michael Onderdonk claimed . . . was stolen under false pretense, [and the] reason Onderdonk could not face [him] in a jury trial, that [is] what cause[d] all the conspiracy, misuse of judicial power invested in the judge, district attorneys under color of state law, and all the malicious criminal prosecution." (Id.).

Plaintiff alleges that the civil case of Onderdonk v. Cotton was called for trial in August, 1987, and that Judge Richmond Pearson asked Judge Thomas Norton, Circuit Court Judge from Baldwin County, to serve as a substitute judge. (Id. at 17, 19). However, after Judge Norton called the case, and the jury was selected, and the witnesses were present, Onderdonk's attorney 4 requested that the case be continued to the criminaldocket on November 18, 1987. (Id.). On November 18, 1987, Judge Richmond Pearson called Plaintiff's six misdemeanors for trial. (Id. at 19). District Attorney Robert Keahey prosecuted the cases and told prospective jurors that if it were not for Plaintiff, a jury would not be needed this week. (Id. at 19-20). On November 18 or 20, 1987, Plaintiff was tried on six misdemeanors and was found guilty on two D.U.I. charges, for which he was incarcerated until April 17, 1989. (Id. at 23-24, 26, 33, 35 (Ex. A-1)). Plaintiff contends that to allow Keahey to try six misdemeanors before the judge to whom the civil case was originally assigned and who put the trial of the misdemeanors ahead of the civil case is a misuse of power. (Id. at 26). On "May 17 and 18, [1988]," Plaintiff was tried on four more misdemeanors. (Id.).5 He received county-jail time on each conviction with "all run wild, for 4 years" which "could be for one reason [to] cover-up the stolen property of [Plaintiff]." (Id.). Plaintiff thus asserts that could not have signed the Quitclaim Deed in the Probate Office as indicated by Eunice Johnston, who notarized the deed on December 16, 1988. (Id. at 23).

According to Plaintiff, he was sentenced on December 16, 1988, on a third-degree assault conviction for causing the retina detachment of Jailer Laton. (Id. at 20, 32-33 (Ex. A-1)). Plaintiff contends that when Sheriff William Wheat initially investigated the incident, he informed Onderdonk and Keahey that Plaintiff did not cause the retina to detach because Laton was already scheduled for surgery to repair it. (Id. at 20, 27). He also contends that the hit to the eye was fabricated as Laton worked the night of the incident without injury. (Id. at 27). Notwithstanding, Onderdonk secretly indicted Plaintiff by having Laton go before the grand jury and commit perjury by saying that Plaintiff hit him in the eye. (Id. at 26). Plaintiff contends that "Judge Hardie Kimbrough conspired with District Attorney Keahey and with Onderdonk, to force a lawyer upon [Plaintiff], [who] [had] never handle[d] a case in Court, and Judge Kimbrough knew why the charges were planned and he knew he was misusing his power, to cooperate with them to gain a conviction, [be]cause he knew of the...

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