Olivara v. Napolitano ( 2014 )

FILED
UNITED STATES DISTRICT COURT NOV 2 0 2014
FOR THE DISTRICT OF COLUMBIA Clerk. US. District 8. Bankruptcy
Courts for the District of Columbia
MOISES GUADALUPE OLIVERA,
)
)
Plaintiff, )
) Case: 1:14-cv-01965
V. ) As$gned1b2lJnas$gned
) Assngn. Date : 11/20/2014
)
)
)
Descr' tio : ' '
JANET NAPOLITANO, etal., 'p n Pro se Gen' CW"
Defendants.
MEMORANDUM OPINION
This matter is before the Court on the plaintiff 5 application to proceed in forma pauperis
and his pro se complaint. The Court will grant the application and dismiss the complaint.
In the guise of a civil rights complaint, plaintiff challenges the jurisdiction of the United
States District Court for the District of Arizona, see Pet’r’s Mem. of Law in Support of his
Complaint Under the Civil Rights Act[,] 42 U.S.C. § 1983, 1985, 1986 and 42 U.S.C. § 1343(3)
and for the Breach of Contract 1111 7—8, claims ineffective assistance of legal counsel and
conspiracy with respect to a plea agreement purportedly reached with the prosecutor, see id. W 4,
9, ll, alleges violations of constitutional rights, see id. W 11-12, and breach of contract, see id. 1]
3, for which plaintiff demands unspecified damages and declaratory relief, see Compl. at 4 (page
number designated by the Court). Challenges of this nature must be presented to the sentencing
court in a motion under 28 U.S.C. § 2255. See Ojo V. Immigration & Naturalization Serv., 106
F.3d 680, 683 (5th Cir. 1997) (the sentencing court is the only court with jurisdiction to hear
defendant's complaint regarding errors that occurred before or during sentencing); Taylor v. US.
Bd. of Parole, 194 F.2d 882, 883 (DC. Cir. 1952) (attack on the constitutionality of the statute
under which defendant was convicted and sentenced is properly pursued by motion under 28
U.S.C. § 2255); Pradelski v. Hawk—Sawyer, 36 F. Supp. 3d 1, 2 (D.D.C. 1999) (concluding that
challenge to trial court’s subject matter jurisdiction proceeds under § 2255). Section 2255
provides specifically that:
[a] prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed_in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate:
set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added). And because plaintiff’s claims pertain to the fact of his
incarceration, he cannot recover damages in this civil rights action without showing that his
confinement already has been invalidated by “revers[al] on direct appeal, expunge[ment] by
executive order, declar[ation of invalidity] by a state tribunal authorized to make such
determination, or . . . a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 US. 477, 486-87 (1994); accord White v. Bowie, 194 F.3d 175 (DC. Cir. 1999) (table).
Furthermore, none of the named defendants is amenable to suit under 42 U.S.C. § 1983. See
Mirales v. Waco, 502 US. 9, 11 (1991) (per curiam) (noting that “judicial immunity is an
immunity from suit, not just from ultimate assessment of damages,” and that it “is not overcome
by allegations of bad faith or malice”); Imbler v. Pachtman, 424 US. 409, 427 (1976) (finding
that prosecutor enjoys absolute immunity under § 1983); McCord v. Bailey, 636 F. 2d 606, 613
(DC. Cir. 1980) (finding that defense counsel is not a “state actor” for purposes of § 1983).
The Court will dismiss the complaint for lack of jurisdiction. An Order accompanies this
Memorandum Opinion.
A};
United States District Judge
DATE: U/ (g/‘pfl