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Hodges v. Gilbert

October 13, 2010

CARLAN D. HODGES, #04702-025, PLAINTIFF,
v.
J. PHIL GILBERT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

Plaintiff Carlan Hodges, currently an inmate in FCI-Ray Brook, brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).*fn1 This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.

BACKGROUND

In June 1999, Hodges was found guilty in this District on two counts involving possession of firearms; he was sentenced to 188 months imprisonment. During pendency of his direct appeal, Hodges learned that his trial judge, District Judge Paul E. Riley, may have had improper ex parte communications with the jury during their deliberations. He filed a motion for new trial, and the matter was remanded from the Seventh Circuit. To consider that motion, District Judge Richard H. Mills of the Central District of Illinois was assigned to the case. Judge Mills held an evidentiary hearing, denied the motion, and Hodges's conviction and sentence were later affirmed. United States v. Hodges, 315 F.3d 794 (7th Cir.), cert. denied, 123 S.Ct. 1943 (2003). Hodges then sought relief under 28 U.S.C. § 2255, which was denied. Hodges v. United States, Case No. 04-cv-4074-RHM (S.D. Ill., filed April 4, 2004).

THE COMPLAINT

In the instant action, Hodges asserts that due to Judge Riley's improper actions, he was deprived of a fair trial under the Fifth and Sixth Amendments, among other provisions, and he seeks an aggregate of $12 million dollars in damages. Hodges sues not only Judge Riley, but also two other federal judges, two government attorneys, and a former law clerk to Judge Riley.

As explained in his supplement (Doc. 7), Hodges includes District Judge G. Patrick Murphy as a defendant because Judge Murphy was the original judge assigned to his criminal case. Early in the proceedings, Judge Murphy realized that earlier in his legal career as a practicing attorney, he had once represented one of the government's witnesses. Judge Murphy recused himself, and the case was reassigned to Judge Riley (Doc. 7, pp. 11-12).

Hodges includes District Judge J. Phil Gilbert as a defendant because Judge Gilbert was Chief Judge in this District at the time of Hodges's criminal trial. In a letter dated December 7, 1999, Judge Gilbert sent a letter to Hodges's attorney, Renee Schooley, advising her that Judge Riley "had ex parte communication with the jury during its deliberations in [Hodges's] case" (Doc. 7, p. 14).

Hodges includes David Agay as a defendant because he was the law clerk for Judge Riley who was assigned to Hodges's case. In a file note dated January 4, 2000, Judge Gilbert summarizes an interview he conducted with Agay in November 1999 regarding Judge Riley's actions during four criminal trials, included Hodges's trial. Agay acknowledged that Judge Riley had contact with jurors during three of those cases. However, ...


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