United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE
Hicks, Jr., a Virginia inmate proceeding pro se and
in forma pauperis, filed this civil action. For the
reasons that follow, the Court will dismiss the action
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A as
frivolous and malicious.
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by an individual
proceeding in forma pauperis if the Court determines
the action "is frivolous or malicious." 28 U.S.C.
§ l9l5(e)(2)(B)(i); 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)). With respect to the second standard, this Court has
A litigant may be deemed to act maliciously if his actions
[i]mport a wish to vex, annoy, or injure another, or an
intent to do a wrongful act, and may consist in direct
intention to injure, or in reckless disregard of
another's rights. Therefore, the court must assess the
character of the allegations insofar as they indicate a
motive on the part of the plaintiff to merely harass or vex
the defendants rather than to seek redress for a legitimate
Cain v. Virginia, 982 F.Supp. 1132, 1136 (E.D. Va.
1997) (alteration in original) (quotation marks and citations
omitted). Further, "[t]he courts have long recognized
that inmate complaints against state officials are a
particularly fertile arena for frivolous and malicious
litigation." Id. (citing Daye v.
Bounds, 509 F.2d 66, 68 (4th Cir. 1975)). This is true,
in part, because incarcerated litigants "possess both
time and dissatisfactions in abundance." Cochran v.
Morris, 73 F.3d 1310, 1316 (4th Cir. 1996). Further, in
assessing whether an action is frivolous or malicious, the
Court is informed by a plaintiffs past litigious conduct and
the tone of his or her current allegations. Id.
HICKS'S OTHER LITIGATION
a jury trial, Hicks was found guilty in the Circuit Court of
Chesterfield County of obtaining money by false pretenses.
See Hicks v. Clarke, No. 3;I5CVI23, 2016 WL 901265,
at *1 (E.D. Va. Mar. 3, 2016), appeal dismissed, 667
Fed.Appx. 796 (4th Cir. 2016). By Memorandum Opinion and
Order entered on March 3, 2016, the Honorable Roderick C.
Young, United States Magistrate Judge dismissed Hicks's
28 U.S.C. § 2254 petition with respect to the above
conviction. Id. at *9. Thereafter, the Honorable
Robert E. Payne, Senior United States District Judge
dismissed a series of successive, unauthorized 28 U.S.C.
§ 2254 petitions filed by Hicks. See, e.g., Hicks v.
Virginia, No. 3;I7CV852, 2018 WL 717007, at *2 (E.D. Va.
Feb. 5, 2018); Hicks v. Virginia, No. 3:16CV946,
2017 WL 1963900, at *1 (E.D. Va. May 11, 2017), appeal
dismissed, 699 Fed.Appx. 195 (4th Cir. 2017); Hicks
v. Clements, No. 3:17CV96, 2017 WL 1963901, at *1 (E.D.
Va. May 11, 2017), appeal dismissed, 699 Fed.Appx.
199 (4th Cir. 2017).
met with no success in overturning his convictions by the
appropriate channels, Hicks began to file a series of actions
wherein he sues anyone tangentially involved in frustrating
his efforts to reverse his conviction. See, e.g., Hicks
v. Davis, No. 3;I7CV287, 2018 WL 1937350, at *2 (E.D.
Va. Apr. 24, 2018) (dismissing as legally and factually
frivolous Hicks's claims that Edward L. Davis, counsel
with the Virginia State Bar, violated Hicks's
constitutional rights by impeding Hicks's ability to
pursue criminal charges against the prosecutor in his case).
In the present action, Hicks names Laura S. Khawaja, the
prosecutor from his criminal case. (See ECF No. 3,
at 1.) Hicks contends that Khawaja is liable to him for
securing his "illegal conviction" by "false
evidence submitted to the court and jury and the suppression
of actual dates, time and version of events."
(Id. at 10 (emphasis omitted).)
both unnecessary and inappropriate to engage in an extended
discussion of the utter lack of merit of Hicks's theories
for relief. See Cochran v. Morris, 73 F.3d 1310,
1315 (4th Cir. 1996) (emphasizing that "abbreviated
treatment" is consistent with Congress's vision for
the disposition of frivolous or "insubstantial
claims" (citing Neitzke v. Williams, 490 U.S.
319, 324 (1989))).
immunity bars Hicks's claims against Ms. Khawaja for
monetary damages. See Imbler v. Pachtman, 424 U.S.
409, 430 (1976). Prosecutorial immunity extends to actions
taken while performing "the traditional functions of an
advocate," Kalina v. Fletcher, 522 U.S. 118,
131 (1997) (citations omitted), as well as functions that are
"intimately associated with the judicial phase of the
criminal process." Imbler, 424 U.S. at 430. To
ascertain whether a specific action falls within the ambit of
protected conduct, courts employ a functional approach,
distinguishing acts of advocacy from administrative duties
and investigative tasks unrelated "to an advocate's
preparation for the initiation of a prosecution or for
judicial proceedings." Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993) (citation omitted); Carter v.
Dutch, 34 F.3d 257, 261- 63 (4th Cir. 1994). Absolute
immunity protects those "acts undertaken by a prosecutor
in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his [or her] role
as an advocate for the State." Buckley, 509
U.S. at 273. Here, Hicks demands monetary damages against
Khawaja for actions Khawaja took in her role as an advocate
for the state. Thus, Khawaja is entitled to absolute
immunity. Accordingly, the Court finds the action is subject
to dismissal as frivolous.
the Court finds the action is subject to dismissal as
malicious. Hicks demands millions of dollars of damages
against Khawaja. Under similar circumstances, courts have
when there is no recital of credible probative facts that
support the allegations that the plaintiff is attempting to
make, the Plaintiff sues those involved in securing his
incarceration, and the tone of all the Plaintiffs allegations
indicates that he is bringing his suit merely to satisfy his
desire for vengeance against the ...