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Howard v. Ehrenworth

United States District Court, E.D. Virginia, Richmond Division

January 14, 2015

JAMES C. HOWARD, Plaintiff,
v.
SCOTT EHRENWORTH, et al.. Defendants.

MEMORANDUM OPINION

JOHN A. GIBNEY, Jr., District Judge.

James C. Howard, a Virginia inmate proceeding pro se and informa pauperis, submitted this 42 U.S.C. § 1983 action.[1] The action is filed. The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

A. Preliminary Review

Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "an indisputably meritless legal theory, '" or claims where the "factual contentions are clearly baseless.'" Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(.b)(6).

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[] only 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.'" Bell AtL Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. "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." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.1. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); lodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

B. Summary of Allegations

On July 9, 2012, a grand jury in the Circuit Court for the City of Newport News ("Circuit Court") indicted Howard on one count of grand larceny and one count of burglary. See Commonwealth v. Howard, Nos. CR12001242-00, CR12001243-00 (Va. Cir. Ct. July 9, 2012).[2] On or about February 21, 2013, a jury found Howard guilty, and convicted him of both counts. Id.

In his Complaint, Howard alleges that Defendant Ehrenworth, an Assistant Commonwealth's Attorney in Newport News, Virginia, "s[ought] a fraudulent purported indictment" (Compl. 4)[3] and "with no proof that proper procedure law was followed, allowed a defective trial to take place" ( id. at 5). Howard alleges the indictments are invalid because the grand jury failed to return them in "open court.'" ( Id. at 5-7.)

Howard alleges that Defendant Anderson, Chief Deputy Clerk of the Circuit Court, violated sections 17.1-123[4] and 124[5] of the Virginia Code by failing to provide Howard with "a copy of the proceedings of grand jury indictments" upon request. ( Id. at 8.) Howard further alleges that Defendants "conspired against [Howard] thru fraud, " ( id. at 10), by "creating a document that was a list of 80 to 90 names of persons indicted on July 9, 2012, " ( id. at 4-5), "claiming it to comply with [Va. Code Ann. §] 17.1-240[6]...." ( id. at 9).

Howard demands $75, 000 in damages. (Compl. 12.) As explained below, the Court will dismiss Howard's § 1983 action with prejudice.

C. Claims Raised on Appeal

Howard's present allegations are identical to the issues he presented to the Court of Appeals of Virginia on appeal of his convictions. In his Complaint, he merely rehashes the same arguments, clumsily reframing them as purported violations of his constitutional and statutory rights. On appeal, Howard "contend[ed] that he was not properly indicted because the indictments were not read aloud in open court...." Howard v. Commonwealth, 760 S.E.2d 828, 829 (Va. Ct. App. 2014) (citation omitted). Howard "also maintain[ed] that the indictment is defective because the order which recites the grand jury proceedings does not provide a photographic image of the indictment returned." Id. at 830.

The Court of Appeals of Virginia thoroughly examined the facts and held "that the indictments were valid and properly presented in open court and the fact recorded, ' as required under Virginia law. Id. at 831 (citing Reed v. Commonwealth, 706 S.E.2d 854, 859 (Va. 2011)). Finding that the Circuit Court ...


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