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Joseph R. Underwood v. Circuit Judge-Justice Center et al.

March 7, 2013



Plaintiff Joseph R. Underwood, a prisoner proceeding in forma pauperis,filed a pro se complaint pursuant to 42 U.S.C. §1983 (DN 1). He also filed a letter in which he reiterated the claims in his complaint and requested a case status (DN 6). This matter is before the Court for initial review pursuant to 28 U.S.C. §1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be dismissed.


Plaintiff names five Defendants in this action; he indicates that all Defendants are sued in both their individual and official capacities. In the caption of the complaint, Plaintiff lists the first Defendant as "Circuit Judge-Justice Center." Later on in the complaint, he identifies this as the Justice Center at the Hardin County Court. The second Defendant is "Commonwealth Attorney-David B Abner." Plaintiff identifies the third Defendant as "APA Office-Fracis L Holbert." "Hardin County its-self" is the fourth named Defendant. The last Defendant named by Plaintiff in this action is the Commonwealth of Kentucky. As relief, Plaintiff seeks compensatory and punitive damages and release from incarceration.

According to Plaintiff, he was charged with a "Class B" state crime that carries a penalty of between ten and twenty years incarceration. Plaintiff states that he "was not under the PFO [persistent felony offender] requirements to charge him with a PFO." According to Plaintiff, "the Court" and "they" knew that he did not meet the requirements to be charged as a PFO.

Despite this, "the Court" and "they" lied to him and threatened him with a PFO and additional time of imprisonment if he did not take a plea which included a 25-year term of imprisonment. Apparently, Plaintiff entered into a plea which stipulated a term of imprisonment of 25 years. According to Plaintiff, "while in prison it has physically and mutually done stuff to his mind lost of sleep of his conditions in prison." Plaintiff contends that his right to due process was violated by Defendants, as well as the Eighth and Fourteenth Amendments.

Attached to the complaint is a document captioned "'Motion Of' 60.02 And 11.42 Actions on 'Hardin Co ApA Office.' 'Judge for fabricating a way to violate my rights.'" In the motion, Plaintiff states:

Fabricating another way to add time to a class B Felon Mr. Underwood did not know the laws of the Court at this time, and it is wrong to sentence a person for more time than the charge it-self carries, seperation of the powers issue, increasing the maxium sentance in a judicial matter, through and under executive body of action, to guard against transgretion of the high powers which we have delegated . . . is violating another seperation of powers issue. General Powers powers subordinate to the Bill of Rights. "Frivulous actions."

Plaintiff attached a second document to the complaint in which he states that he is bringing this action only under 42 U.S.C. § 1983, and that his action does not "fall under 2241, 2254, [or] 2255." Further, he states: the Court of Hardin Co. knew I was being miss lead in my sentence as of 25 years for a Class B crime this also would fall under a double jepordey clause saying they would run both charges together to a Class B Class B only careys 20 years only in these "frivlous" actions of this court being unjustice to somebody that did not know the court I only want paid for these mistakes and released to go home to my family 8 million for my trouble and stay in here or 4 million and go home, this court knew they was not helping me none butting both charge's together!


When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the complaint, or any portion of it, if it determines that the complaint 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. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 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] 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)). "But the district court need not accept a 'bare assertion of legal conclusions.'" Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court's duty "does not require [it] 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 the Court "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 an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


A. Plaintiff's Action is Barred By Heck v. Humphrey

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court established the so-called "favorable termination rule." The Heck Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. If a ruling on a § 1983 claim would necessarily imply the invalidity of any outstanding criminal judgment against Plaintiff, the § 1983 claim must be dismissed, not for lack of exhaustion of state remedies, but because it is simply not cognizable until the criminal judgment has been terminated in Plaintiff's favor. Id. at 487. The favorable termination requirement "'avoids parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.'" Id. at 484 (quoting 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 28:5, p. 24 (1991)). Under Heck and its progeny, "a state ...

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