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Michael Dale Howard v. Joe Glenn

January 22, 2013

MICHAEL DALE HOWARD
PLAINTIFF
v.
JOE GLENN, SHERIFF'S OFFICE ET AL. DEFENDANTS



MEMORANDUM OPINION

Plaintiff Michael Dale Howard filed a pro se complaint pursuant to 42 U.S.C. § 1983. This matter is before the Court on initial review of the complaint pursuant to 28 U.S.C. § 1915A. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the complaint will be dismissed.

I. SUMMARY OF CLAIMS

Plaintiff is a convicted state inmate incarcerated at the Kentucky State Penitentiary (KSP). He brings suit against Daviess County Sheriff/Administrator Joe Glenn and Attorneys Julia H. Gordon and David W. Lamar in their individual and official capacities.

In the complaint, Plaintiff first reports that on April 10, 2003, he was sent to prison for "15 yrs. 85%." He reports being beaten and losing his eye sight "all because I am a child molester." He states that his Sixth and Fourteenth Amendment rights guarantee a criminal defendant a meaningful opportunity to present a complete defense. He states that "[a]ccording to the Sixth Amendment, my lawyer David W. Lamar didn't perform his duties as required by the American Bar Association." If Defendant Lamar had performed his duties, claims Plaintiff, "I would have had a lesser sentence plus I would have appealed my sentence. . . . [I]f he had investigated the outcome would have been a reversed decision on my sentence." He alleges that he was "illegally forced to take a plea bargain" and "recently discoverd 'Brady materials' were improperly withheld by my counsel [and] the Commonwealth of which I had no knowledge . . . [which] could have proved my innocence [and] me not coming to prison."

Second, Plaintiff reports that on July 19, 2008, his mother passed away. He then states as follows:

I was told by David C. Payne, Judge, to appear [and] protest against my mom's estate. There was a difference in time zones [and] Julia H. Gordon was appointed my lawyer. Also, the Sheriff's Office was sole fudiciary on my estate, Joe Glenn. According to the 6th Amendment my right to ineffective assistance of counsel was violated by Julia H. Gordon. Her duties were to let me know all information about my estate which she didn't. Since Joe Glenn couldn't locate me, [and] no one else protesting, everthing including personal items were sold. The state didn't have the right to sell without my approval. I have been trying to locate my inheritance and no one has sent me information. I have notified the American Bar Association [and] have asked that her license be removed [and] to pay me the rest of the money she owes including interest.

Plaintiff states that "[this] claim along with [Claim 1] is in violations of the 6th Amendment right to ineffective assistance of counsel along with the American Bar Association and the duties required also by the Supreme Court as well."

As relief, Plaintiff seeks monetary and punitive damages and to have Defendants Lamar's and Gordon's "licenses permanently removed" and "to have them escorted by the U.S. Marshalls to legally bring me $5,000.00 each . . . immediately."

II. STANDARD OF REVIEW

Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of the complaint, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See § 1915A(b)(1), (2); McGore, 114 F.3d at 604.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327.

In order to survive dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

Although courts are to hold pro se pleadings "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less stringent "does not require us to conjure up unpled allegations," McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require courts "to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of ...


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