Magee v. White
| Decision Date | 27 January 2022 |
| Docket Number | 21-cv-00001-LG |
| Parties | DRAESHUND K. MAGEE, #14800-003 PLAINTIFF v. GLENN L. WHITE, ET AL. DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
THIS MATTER IS BEFORE THE COURT sua sponte. Pro se Plaintiff Draeshund K. Magee, an inmate of the Federal Correctional Institution in Bastrop, Texas, brings this Complaint pursuant to 42 U.S.C. 1983. Magee is proceeding in forma pauperis. (Order, ECF No. 13). For the reasons set forth below, this case is dismissed pursuant to 28 U.S.C. 1915 (e)(2)(B)(i) and (ii).
On July 21, 2014, Magee pled guilty to possession of a controlled substance with intent to distribute before the Circuit Court of Pearl River County, Mississippi. (Ex., 51-53, ECF No 1-1).[1] Glenn L. White served as Magee's retained counsel for these proceedings and County Court Judge Richelle Lumpkin served as Acting Circuit Judge by assignment. (Id. at 1, 3). According to Magee, Judge Anthony Mozingo was the Circuit Judge originally assigned to his case. (Compl., 46, ECF No. 1). Magee received a sentence of eight-years of imprisonment, which was suspended pending his successful completion of a term of post-release supervision. (Id. at 1-2).
Magee states that approximately “8 to 9 months later” he was arrested by the City of Picayune on felony drug charges, which led to revocation proceedings for his term of post-release supervision. (Compl., 22, ECF No. 1). Magee retained attorney Melvin Cooper to represent him for the revocation proceedings. (Id.) On March 24, 2015, Magee's term of post-release supervision was revoked by acting Circuit Judge Lumpkin, and a seven-year term of imprisonment was imposed. (Id.; Ex., 56, ECF No. 1-1).
On April 15, 2016, Magee was convicted of conspiracy to distribute cocaine in the United States District Court for the Southern District of Alabama. United States v. Magee, No. 1:15-cr-352-001 (S.D. Ala. Apr. 15, 2016). Magee was ordered to serve a federal term of imprisonment of 107 months.[2] Magee names Fred Tieman and Gregory Hughues as his federal public defenders for this criminal case. On November 18, 2020, the sentencing court dismissed Magee's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255. United States v. Magee, No. 1:15-cr-352-001 (S.D. Ala. Apr. 15, 2016) (J., 1, ECF No. 85).
Magee states that on February 21, 2017, he was paroled from the Mississippi Department of Corrections to the federal Bureau of Prisons, where he remains incarcerated. (Ex., 45, ECF No. 7-2).
Magee's Complaint with Exhibits, Motions to Amend, and Amended Complaint with Exhibits, total over 1, 100 pages. In his original Complaint, attorneys Glenn L. White and Melvin Cooper, federal public defenders Fred Tieman and Gregory Hughues are named as Defendants along with Circuit Court Judge Anthony Mozingo, the 15th District Circuit Court, and the United States of America. In Magee's first Motion to Amend, he adds the State of Mississippi and Pearl River County as Defendants. (Mot, 1, ECF No. 5). In his second Motion to Amend, Magee adds a “criminal complaint” against the existing Defendants and the First National Bank of Picayune and Byron J. Stockstill, the bank's attorney. (Mot., 1-2, ECF No. 6).
In his Amended Complaint, Magee also includes the Mississippi Bar Association and the Mississippi Commission on Judicial Performance as Defendants. (Am. Compl., 2, ECF No. 7). In the “statement of claim” attachment to his Amended Complaint, Magee states that he is bringing his Complaint under 1983 as well as the Federal Tort Claims Act (“FTCA”). (Ex., 1, ECF No. 7-2). In the cover letter accompanying Magee's Amended Complaint, he includes Judge Richelle “Dina” Lumpkin in the list of Defendants. (Ex., 2, ECF No.7-1).
As relief, Magee seeks six to eight million dollars “or that a trial be conducted.” (Compl., 70, ECF No. 1; Am. Compl., 4, ECF No. 7). In his second Motion to Amend, Magee seeks the filing of criminal charges. (Mot., 2-3, ECF No. 6). In one of the attachments to his Amended Complaint, Magee seeks habeas relief from his federal conviction and sentence under 28 U.S.C. 2255. (Ex., 1-2, ECF No. 7-2).
Since Magee is proceeding pro se, his pleadings are liberally construed. See Hernandez v. Thaler, 630 F.3d 420, 426-27 (5th Cir. 2011) (citations omitted) ( the filings of a pro se litigant “are entitled to the benefit of liberal construction”). Initially, the Court liberally construes the following as named Defendants: Glenn L. White, Melvin Cooper, Fred Tierman, Gregory Hughues, United States of America, Judge Anthony Mozingo, 15th District Circuit Court, State of Mississippi, Pearl River County, First National Bank of Picayune, Byron J. Stockstill, Mississippi Bar Association, Mississippi Commission on Judicial Performance, and Judge Richelle “Dina” Lumpkin.[3]
Magee brings this action under 42 U.S.C. 1983, and in an attachment to his Amended Complaint, Magee states that he is also bringing his Complaint under the FTCA. (Ex., 1, ECF No. 7-2). Magee asserts allegations involving state and federal action. Since an action seeking relief for a constitutional violation by a federal agent is properly pursued as a Bivens action, the Court also considers Magee's claims under Bivens. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) ().
Magee's voluminous filings consist of allegations that include portions of state and federal statutes, constitutional terms, criminal laws, and various types of liability and recovery, along with copies of state and federal documents. In this Memorandum Opinion and Order, the Court summarizes Magee's allegations and considers his claims under 1983, Bivens, the FTCA, and 28 U.S.C. 2255, 2254. Any other statute or theory of recovery not specifically mentioned is inapplicable to Magee's allegations or patently frivolous.
Magee initially complains about the legality of his 2011 or 2012 arrest[4] in Pearl River County, Mississippi. Magee argues that his 2014 guilty plea in the Pearl River County Circuit Court was involuntary or “forced” for various reasons including his belief that he would be immediately jailed on a bench warrant if he did not plead guilty. (Compl., 18, 20, ECF No. 1). Magee blames defense attorney White for this guilty plea and resulting sentence. The focus of Magee's complaints about the legality of his guilty plea, conviction, sentence, and revocation revolve around his belief that Judge Lumpkin, a Pearl River County Court Judge, illegally acted as a Circuit Court Judge during these proceedings.
Magee also claims that his 2015 federal sentence was illegally enhanced by 60-months based on his unlawful Pearl River County conviction and revocation. Magee complains that federal public defenders Tieman and Hughues “failed to object or even challenge” the use of his Pearl River County conviction to enhance his federal sentence. (Ex., 22, ECF No. 7-2).
The in forma pauperis statute mandates dismissal “at any time” if the Court determines an action “fails to state a claim on which relief may be granted” or “is frivolous or malicious.” See 28 U.S.C. 1915 (e)(2)(B). The Fifth Circuit deems a complaint to be frivolous “if it lacks an arguable basis in law or fact or if there is no realistic chance of ultimate success.” Henthorn v. Swinson, 955 F.2d 351, 352 (5th Cir. 1992) (per curiam). Since Magee is proceeding in forma pauperis, his Complaint is subject to the case-screening procedures set forth in 28 U.S.C. 1915 (e)(2). Having completed that screening, it is apparent that Magee's claims are barred by absolute judicial immunity, by Heck v. Humphrey, 512 U.S. 477 (1994), by the applicable statute of limitations, or otherwise are frivolous.
As mentioned above, Magee primarily seeks relief under 42 U.S.C. 1983. To have a viable claim under 1983, a plaintiff “must allege facts showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege or immunity secured by the United States Constitution or the laws of the United States.” Bryant v. Military Dep't of the State of Miss., 597 F.3d 678, 686 (5th Cir. 2010).
Judge Mozingo and Judge Lumpkin enjoy absolute immunity from suit when performing acts within their judicial capacity. See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Claims of bad faith, malice, and corruption do not overcome absolute judicial immunity. See Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted). Nor will a judge be deprived of immunity because the action he took was in error or in excess of his authority. Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Judicial immunity can be overcome only by showing that the actions complained of were non-judicial in nature, or by showing that the actions were taken in the “clear absence of all jurisdiction.” Stump, 435 U.S. at 356-57.
In determining whether a judge acted within the scope of his judicial capacity, the court considers four factors “(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.” Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (citing...
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