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Monsegue v. Moore

United States District Court, S.D. Georgia, Savannah Division

February 5, 2019

FRANK D. MONSEGUE, SR., Plaintiff,
v.
JUDGE WILLIAM T. MOORE, et al ., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          Christopher L. Ray United States Magistrate Judge Southern District of Georgia

         Proceeding pro se and in forma pauperis, Frank Monsegue, Sr., brings this Bivens action[1] against the judges, prosecutors, and law enforcement officers involved in his federal criminal prosecution.[2] CV418- 239, docs. 1 & 6. The Court granted plaintiff's request to pursue his case in forma pauperis (IFP), doc. 5, and he returned the necessary forms. Docs. 8 & 9. The Court now screens the Complaint pursuant to 28 U.S.C. § 1915A, which requires the immediate dismissal of any pro se complaint that fails to state at least one actionable claim against a governmental entity or official.[3]

         I. BACKGROUND

         Some background is necessary to illuminate Monsegue's history with this Court. Monsegue pled guilty to wire fraud conspiracy, theft of government property, and aggravated identity theft for his role in a tax refund fraud conspiracy. See CR414-019, docs. 3 (indictment), 29 (superseding indictment), 109 (minute entry), 110 (judgment for 87 months' imprisonment). He initially chose to plead not guilty, id., docs. 119 & 120, but changed his mind (for the first time) midway through voir dire of the jurors for his trial. Id., doc. 121 at 17 (counsel gave a note to the Court indicating that movant “now wishes to change his plea.”). He then vacillated again because he was “not prepared” to be taken immediately into custody, see id., doc. 125 at 6-7 (“Your Honor, we do not have an agreement. The defendant has changed his mind.”), but after counsel conferred again on the proposed plea agreement, Monsegue (again) elected to enter a last-minute plea of guilt while the empaneled jury waited in the wings. Id., doc. 75 (Rule 11 hearing) at 4.

         Vacillating yet again, Monsegue unsuccessfully attempted to withdraw his guilty plea. E.g., CR414-019, doc. 77. He then missed his sentencing hearing (apparently due to counsel's failure to notify him of the upcoming date), and promptly fled to New York when a bench warrant was issued for his arrest. See id., doc. 122 at 7-10, 19-20. He was captured and returned to this District for sentencing. Docket Entry dated May 12, 2015 (reflecting arrest); see also id., doc. 96 (arrest warrant returned executed); id., docs. 109 & 110 (sentencing minutes and judgment). He did not appeal, see id., doc. 111 (signed post-conviction certification declining to appeal conviction), but moved instead to vacate his sentence under 28 U.S.C. § 2255. Id., doc. 116. That motion was denied on the merits, id., docs. 136, 142 & 143, and the Eleventh Circuit denied his motion for a certificate of appealability, id., docs. 153 & 154. He is currently serving a sentence of 87 months, with credit already applied for time served, and repaying $432, 583.86 in restitution to the Internal Revenue Service, to be paid jointly and severally with his codefendant. Id., doc. 122 at 24.

         Stymied in his pursuit of collateral relief, Monsegue is back with several theories as to how his civil rights have been violated. CV418-239, docs. 1 & 6. He seeks $15 million from each actor that he believes responsible for his incarceration. Doc. 6. But he sues defendants immune from suit long after the statute of limitations has closed, to undermine a valid, standing conviction.

         II. ANALYSIS

         A. Time-Barred Claims

         The statute of limitations for § 1983 claims “is that which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387 (2007) (cite omitted). Under Georgia law, the statute of limitations for such claims is two years. O.C.G.A. § 9-3-33; see Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). Generally, the statute of limitations for § 1983 claims begins to run when facts supporting the cause of action are or should be reasonably apparent to the claimant. Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (per curiam).

         Liberally construed, Monsegue waves at excessive force and denial of medical care claims. When Deputy Marshal Thomas captured him in New York, Monsegue alleges that his brother was unnecessarily “handcuff[ed] with his hands behind his back.” Doc. 6 at 15. Monsegue himself “was then t[h]rown on the bed and elbowed in the right side of [his] head” and not subsequently provided with medical care. Id. As a threshold matter, constitutional rights violations cannot be vicariously asserted. See Tileston v. Ullman, 318 U.S. 44, 46 (1943). Even if his brother's rights were violated, therefore, Monsegue's claim for damages for those violations would still be subject to dismissal.

         Further, pretermitting any analysis of whether Monsegue's allegations of denial of medical care or excessive force rise to the level of constitutional magnitude, compare doc. 6 at 15 (admitting that after being subjected to an allegedly excessively forceful arrest, he sustained no injuries and “no medical aid was needed”), with 42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner . . . without a prior showing of physical injury.”); see also Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (“the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”); id. (noting the arresting officer Farrell permissibly “grabbed plaintiff's arm, twisted it around [his] back, jerking it up high to the shoulder and then handcuffed [him] as [he] fell to his knees screaming that Farrell was hurting him, ” which is a “handcuffing technique” that is “a relatively common and ordinarily accepted non-excessive way to detain an arrestee”), any claim arising from his arrest clearly falls outside the two-year statute of limitations. Excessive force claims accrue when the alleged use of excessive force occurred. See Baker v. City of Hollywood, 391 Fed.Appx. 819, 821 (11th Cir. 2010). Monsegue's pre-sentencing seizure in New York occurred in May 2015, more than three years before he filed his Bivens complaint. Doc. 6 at 15. Any claim arising from those events is time-barred.

         Monsegue also levies a claim for false arrest or false imprisonment, a tort which affords a remedy for detention without legal process. See Kato, 549 U.S. at 389 (a false arrest claim based on a warrantless arrest is “a species” of a false imprisonment claim). As damages for a false arrest claim “cover the time of detention up until issuance of process or arraignment, but not more, ” Heck v. Humphrey, 512 U.S. 477, 484 (1994), a claim for false arrest accrues upon detention. In a case of continuing detention (as here), however, “false imprisonment ends once the victim becomes held pursuant to [legal] process - when, for example, he is bound over by a magistrate or arraigned on charges.” Id. at 389-90.[4] Here, any action accrued at Monsegue's felony arraignment held March 20, 2014. See United States v. Monsegue, CR414-019, doc. 41. Any claim now asserted, more than four years later, is clearly time-barred as well.

         B. Immune Defendants

         Regardless of the timeliness of his claims, Monsegue has sued a panoply of individuals and entities not subject to § 1983 liability. Judges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996). This immunity applies even when the judge's acts are in error, malicious, or were in excess of his or her jurisdiction, see Stump, 435 U.S. at 356; Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir. 1986), and extends to all claims, whether for damages or for injunctive relief, Bolin, 225 F.3d at 1239-42. The only remedy for a judge's errors is appeal, and plaintiff declined to appeal his guilty plea (see CR414-019, doc. 111). Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (a judge's “errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless ...


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