United States District Court, D. Maryland
L. Hollander United States District Judge
Lee Hicks, a Maryland prisoner housed at Western Correctional
Institution in Cumberland, Maryland (“WCI”),
filed suit on October 21, 2019 (ECF 1), seeking declaratory
and injunctive relief as well as money damages. He alleges
due process violations that occurred in connection with
post-conviction proceedings filed on his behalf in the
Circuit Court for Washington County, Maryland. Hicks names as
defendants Matthew Lynn, a court-appointed post-conviction
attorney; Dennis J. Weaver, Clerk of Court for the Circuit
Court of Washington County; Initia Lettau, Chief Attorney for
the Office of the Public Defender post-conviction section;
and the Honorable Daniel P. Dwyer, Circuit Court for
Washington County. Hicks has included with his suit
“Allegations of Error” by trial and appellate
counsel, as well as exhibits. ECF 1-1.
has failed to pay the filing fee or submit a Motion for Leave
to Proceed in Forma Pauperis. For reasons noted herein, he
will not be required to correct this deficiency.
asserts several complaints. These include that Lynn did not
inform him as to the reaosn his post-conviction hearing was
held in absentia on November 14, 2016; Weaver failed to
“forward [his] Motion for Post-Conviction Relief”
to the Circuit Court; and Lettau, who was subsequently
appointed to represent Hicks, did not provide him with
transcripts of the hearing on November 14, 2016, and failed
to file an application for review of sentence by a
three-judge panel. Further, Hicks complains that Judge Dwyer
“refused to review or sign [his] Motion for Appropriate
Relief, ” which would grant him time to file a belated
Application for Review of Sentence. ECF 1 at 2-3; ECF 1-1 at
on Hicks's recent indigency application,  the Court will
grant Hicks leave to proceed in forma pauperis, pursuant to
28 U.S.C. § 1915(a)(1). Section 28 U.S.C. § 1915(a)
permits an indigent litigant to commence an action in this
Court without prepaying the filing fee. To guard against
possible abuses of this privilege, however, the statute
requires dismissal of any claim that is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i),
(ii) and (iii).
Court is mindful of its obligation to construe liberally the
pleadings of pro se litigants. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nonetheless, liberal
construction does not mean that this Court can ignore a clear
failure in the pleading to allege facts which set forth a
cognizable claim. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990). In making this
determination, “[t]he district court . . must hold the
pro se complaint to less stringent standards than pleadings
drafted by attorneys and must read the complaint
liberally.” White v. White, 886 F.2d 721, 722-
723 (4th Cir. 1989). Given this standard, the Court must
dismiss Hicks's Complaint, as it fails to state a
cognizable constitutional claim.
do not act under color of state law even if they are
appointed by the court. See Deas v. Potts, 547 F.2d
800, 800 (4th Cir. 1976); see also Hall v. Quillen,
631 F.2d 1154, 1155-56 (4th Cir. 1980). In addition, public
defenders do not act under color of state law when performing
a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding. Polk Cty v.
Dodson, 454 U.S. 312, 453-54 (1981). While an attorney
who conspires with a state official to violate constitutional
rights does act under color of state law, evidence of the
conspiracy is required. See Tower v. Glover, 467
U.S. 914, 920 (1984); Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984) (plaintiff must make more than
naked assertion of conspiracy). Such an allegation is not
apparent here, foreclosing the claims against Lynn and Lettau
under the facts alleged. Further, nothing suggests that Hicks
is constitutionally entitled to a copy of his post-conviction
was apparently granted 30 days to file a belated application
for review of sentence. ECF 1-1 at 11-12. On August 5, 2019,
the State and Attorney Lettau forwarded a Motion for
Appropriate Relief to the Circuit Court suggesting that a
consent order had not been received by the Court.
Id. The electronic record demonstrates that the
Motion for Appropriate Relief was promptly docketed on August
5, 2019, and granted on August 7, 2019. See State v.
Hicks, No. 21-K-11-046038 (Cir. Ct. Washington Co.).
Hicks's Complaint provides no factual basis to hold
Weaver, the Clerk of Court, liable for damages for any delay
in the filing of the consent order.
the Court notes that a claim for damages against a judicial
officer acting within the scope of judicial authority is
prohibited by the doctrine of judicial immunity. See
Forrester v. White, 484 U.S. 219, 226-27 (1988)
(“If judges were personally liable for erroneous
decisions, the resulting avalanche of suits, most of them
frivolous but vexatious, would provide powerful incentives
for judges to avoid rendering decisions likely to provoke
such suits.”). The doctrine of judicial immunity
shields judges from monetary claims against them in both
their official and individual capacities. Mireles v.
Waco, 502 U.S. 9, 9-10 (1991) (per curiam). Judicial
immunity is an absolute immunity; it does not merely protect
a defendant from assessment of damages, but also protects a
judge from damages suits entirely. Id. at 11.
Moreover, “judges of courts of superior or general
jurisdiction are not liable to civil actions for their
judicial acts, even when such acts are in excess of their
jurisdiction and are alleged to have been done maliciously or
corruptly.” Stump v. Sparkman, 435 U.S. 349,
355-56 (1978); see Dean v. Shirer, 547 F.2d 227, 231
(4th Cir. 1976) (stating that a judge may not be attacked for
exercising judicial authority even if done improperly).
doctrines were more solidly established at common law than
the immunity of judges from liability for damages for acts
committed within their judicial discretion. Immunity applies
even when the judge is accused of acting maliciously and
corruptly. Here, Hicks accuses Judge Dwyer of failing to
review or sign his Motion for Appropriate Relief. ECF 1 at 3.
Examination of the state court record demonstrates, however,
that the motion was promptly signed. In any event, imposing a
burden on judges to rule hastily on pending motions would
contribute not to principled decision-making but to
intimidation. Even if the motion had yet to be resolved,
Hicks would not have recourse to demand resolution under the
doctrine of judicial immunity.
extent Hicks seeks injunctive or declaratory relief against
any of the defendants, his claim also fails. Essentially, he
asks this Court to grant mandamus relief to compel the
Maryland courts and public defender services to (1) grant a
pending motion, (2) provide him with a transcript, and (3)
schedule a three-judge panel sentencing review hearing. Under
28 U.S.C. § 1361 the federal district courts have
original jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States or one
of its agencies to perform a duty owed to a petitioner. In
order to meet the requirements for mandamus relief, a
petitioner must show that he has the clear legal right to the
relief sought; that the respondent has a clear legal duty to
perform the particular acts requested; and that no other
adequate remedy is available. See In re First Fed.
Savings and Loan Ass'n of Durham, 860 F.2d 135, 138
(4th Cir. 1988); Asare v. Ferro, 999 F.Supp. 657,
659 (D. Md. 1998). The failure to show any of these
prerequisites defeats a district court's jurisdiction
under 28 U.S.C. § 1361. See National Association of
Government Employees v. Federal Labor Relations
Authority, 830 F.Supp. 889, 898 (E.D. Va. 1993).
no authority to compel a State court to act to provide a
transcript, forward a pleading, or rule on a pending motion.
Therefore, the mandamus relief requested by Hicks is
lawsuit shall be dismissed under all three subsections of 28
U.S.C. § 1915(e)(2)(B) and he shall be assessed as a
“first strike”. He is cautioned that he may be
barred from filing future suits in forma pauperis if he
continues to file federal civil rights actions that are
subject to ...