United States District Court, S.D. Indiana, Terre Haute Division
DAVID W. GREEN, JR., Plaintiff,
TIMOTHY GRAY Prosecutor Clark Co., VICKI L. CARMICHAEL Judge, KRISTINE NOLE esq., RICHARD BROWN Warden, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
WILLIAM T. LAWRENCE, JUDGE
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.
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
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.
Unjust Conviction Statutes
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.
Release from Custody
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 ...