United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER DISMISSING WITHOUT PREJUDICE PLAINTIFF'S CLAIM AGAINST DEFENDANT TIMOTHY JOSEPH SULLIVAN AND DISMISSING WITH PREJUDICE PLAINTIFF'S CLAIM AGAINST DEFENDANTS LIAM O'GRADY AND ROGER W. TITUS
FREDERICK P. STAMP, Jr., District Judge.
I. Procedural History
The pro se plaintiff, Alexander Otis Matthews ("Matthews"), filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against defendant, Timothy Joseph Sullivan ("Sullivan"), in error. The plaintiff's complaint, instead, should have been filed as a Bivens complaint, and therefore it will be construed as such. The plaintiff then filed an amended complaint asserting a claim pursuant to the Federal Torts Claim Act ("FTCA") and adding United States District Court Judge Liam O'Grady ("O'Grady") and United States District Court Judge Roger W. Titus ("Titus") as defendants in this action. The action was then assigned and transferred to the undersigned judge.
In his complaint, Matthews contends that he is due monetary relief from Sullivan based on his ineffective assistance of counsel in his criminal conviction for bank fraud and aiding and abetting in violation of 18 U.S.C. §§ 1344 and 2. See United States v. Matthews, Criminal Action No. 8:11CR87 (D. Md. 2011); United States v. Matthews, Criminal Action No. 1:11CR348 (E.D. Va. 2011). Matthews asserts that Sullivan was appointed as his attorney after his initial attorney, James T. Zelloe ("Zelloe"), was found to have a conflict of representation when an alleged co-conspirator became a witness for the government. The plaintiff argues that Sullivan thereafter was unprepared and unfamiliar with the plaintiff's case and thus Sullivan failed in his representation of the plaintiff.
The plaintiff's FTCA contentions as to O'Grady and Titus also stem from their involvement in the underlying criminal conviction of the plaintiff. In his amendment to the complaint, the plaintiff alleges that O'Grady failed to accurately consider the plaintiff's petition pursuant 28 U.S.C. § 2255 ("§ 2255 petition"). As to Titus, the plaintiff claims that Titus failed to protect the constitutional rights of the plaintiff by allowing Zelloe, the initial attorney, to continue to represent the plaintiff in a bond revocation hearing even though Titus was aware of the actual conflict created by Zelloe's representation of a key government witness and the plaintiff.
On July 15, 2011, the plaintiff entered a plea of guilty in the United States District Court for the Eastern District of Virginia to one count of bank fraud in violation of 18 U.S.C. § 1344 pursuant to an indictment filed in the United States District Court for the District of Maryland and to one count of wire fraud in violation of 18 U.S.C. § 1343 pursuant to an indictment filed in the Eastern District of Virginia. Both indictments were considered in the Eastern District of Virginia pursuant to the parties' consensual transfer of the District of Maryland's pending indictment.
Thereafter, the plaintiff was sentenced to 120 months for each count to run concurrently with credit for time served. Further, he was sentenced to three years of supervised release for the bank fraud charge and five years of supervised release, to run concurrently, for the wire fraud charge. Finally, he was directed to pay restitution in the amount of $5, 044, 250.00 and a mandatory special assessment of $200.00. After final sentencing, the plaintiff filed a § 2255 petition asserting various claims.
The plaintiff's § 2255 petition was denied by the Eastern District of Virginia court. The plaintiff appealed and the action was remanded by the United States Court of Appeals for the Fourth Circuit for the district court to consider whether a certificate of appealability should be granted. The district court denied a certificate of appealability and upon appeal by the plaintiff, the Fourth Circuit denied a certificate also and dismissed the plaintiff's notice of appeal. The plaintiff then filed a Federal Rule of Civil Procedure Rule 60(b) motion for permission to file a second or successive § 2255 petition, however, this motion was also denied by the Fourth Circuit. This suit, filed in the District of Maryland, followed that denial.
For the reasons that follow, this Court dismisses the plaintiff's complaint without prejudice as to defendant Sullivan but only for refiling if the plaintiff's federal conviction is overturned. Further, this Court dismisses the plaintiff's complaint with prejudice as to defendants O'Grady and Titus.
III. Applicable Law
Under the Prison Litigation Reform Act ("PLRA"), federal courts are required to screen civil complaints in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A. If, on review, a court finds that the prisoner's allegations are frivolous, malicious, or fail to state a claim upon which relief may be granted, or, in the alternative, the prisoner seeks monetary relief from a defendant who is immune from such relief, the court must dismiss the complaint in whole or in part. 28 U.S.C. § 1915A(b).
A complaint is considered frivolous when "it lacks an arguable basis either in law or fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). A court may dismiss a complaint as frivolous if it is either based on "an indisputably meritless legal theory" or when the complaint's "factual contentions are clearly baseless." Id. at 327. Although some overlap exists in the functional meaning of "frivolous" and "fails to state a claim" as provided in the PLRA, the terms are not identical. As noted by the United States Supreme Court, all frivolous actions are also subject to dismissal ...