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Green v. Gray

United States District Court, S.D. Indiana, Terre Haute Division

September 19, 2017

DAVID W. GREEN, JR., Plaintiff,
v.
TIMOTHY GRAY Prosecutor Clark Co., VICKI L. CARMICHAEL Judge, KRISTINE NOLE esq., RICHARD BROWN Warden, Defendants.

          ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER PROCEEDINGS

          HON. WILLIAM T. LAWRENCE, JUDGE

         I.

         The plaintiff's motion to proceed in forma pauperis, Dkt. No. 2, is denied as presented. He shall have until October 17, 2017, in which renew his motion to proceed in forma pauperis by attaching a copy of the transactions associated with his institution trust account for the 6-month period preceding the filing of this action on May 26, 2015. 42 U.S.C. § 1915(a)(2). Otherwise, the plaintiff must pay the $ 400.00 filing fee.

         II.

         Plaintiff David W. Green is a prisoner currently incarcerated at Wabash Valley Correctional Facility. Because Mr. Green is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by Mr. Green are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.

Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).

         III.

         Mr. Green filed this civil action against Prosecutor Timothy Gray, Judge Vicki L. Carmichael, Attorney Kristine Nole, and Warden Richard Brown. For the reasons explained below, the complaint is dismissed for failure to state a claim upon which relief can be granted.

         A. Unjust Conviction Statutes

         Mr. Green states that this action is brought pursuant to the Unjust Conviction Statutes, 28 U.S.C. §§ 1495 and 2513 (collectively). Unfortunately, for Green, these statutes do not apply to the circumstances he alleges because he has not been convicted of a federal offense. Nyabwa v. United States, 130 Fed.Cl. 179, 184-85 (2017)(holding that “[b]oth 28 U.S.C. § 1495 and 28 U.S.C. § 2513 relate to criminal offenses against the United States, and, this court does not have jurisdiction to hear a plaintiff's unjust conviction and imprisonment claims arising from state crimes.”). Even if Mr. Green had been convicted of a federal offense, his claims could only be brought in the United States Court of Federal Claims, not this district court. 28 U.S.C. § 1495.

         B. Release from Custody

         Next, Mr. Green argues that the defendants are liable to him for violating his Fourteenth Amendment rights. Specifically, the defendants refuse to release him from custody as directed by the Clark County Circuit Court. Relatedly, Green claims that the defendants violated his Sixth Amendment rights by denying him a speedy public trial by an impartial ...


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