Brown v. Queen

FILED

APR 02 2009

UNITED STATES DISTRICT COURT Clerk, u.s. District and

FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts

CHARLES M. BROWN,

Plaintiff,

v. Civil Action No. 09 0614

ELLIOTT QUEEN, ESQUIRE,

Defendant.

MEMORANDUM OPINION

This matter comes before the Court on plaintiffs application to proceed informa

pauperis and pro se complaint.

After a jury found plaintiff guilty of identity theft, fraud in obtaining public assistance,

conspiracy, unlawful food stamp usage, and false representation, the Superior Court of the

District of Columbia sentenced him to 22 months' incarceration followed by five years'

supervised release. CompI., Attach. at 1. Generally, plaintiff alleges that his attorney refused to

present favorable evidence that plaintiff had supplied to the attorney, and that his attorney

conspired with the prosecutor to his detriment. See id. at 1-5. Plaintiff demands "a public

declaration" that his attorney and the prosecutor "conspired together for [his] demise whether by

indifference or omission." Compi. at 5.

Insofar as plaintiff is alleging that his attorney rendered ineffective assistance of counsel,

this claim must be brought by motion in the Superior Court under D.C. Code § 23-110. In

relevant part D.C. Code § 23-110 provides:

[An] application for a writ of habeas corpus in behalf of a prisoner

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who is authorized to apply for relief by motion pursuant to this

section shall not be entertained by ... any Federal. .. court if it

appears ... that the Superior Court has denied him relief, unless it

also appears that the remedy by motion is inadequate or ineffective to

test the legality of his detention.

D.C. Code § 23-11 O(g). "Section 23-110 has been found to be adequate and effective because it

is coextensive with habeas corpus." Saleh v. Braxton, 788 F. Supp. 1232 (D.D.C. 1992). It is

settled that "a District of Columbia prisoner has no recourse to a federal judicial forum unless

the local remedy is 'inadequate or ineffective to test the legality of his detention'" Byrd v.

Henderson, 119 F.3d 34,36-37 (D.C. Cir. 1997) (internal footnote omitted); Garris v. Lindsay,

794 F.2d 722, 726 (D.C. Cir.), cert. denied, 479 U.S. 993 (1986).

Insofar as plaintiff alleges that his attorney and the prosecutor conspired to obstruct

justice or to deprive him of his civil rights under 42 U.S.c. § 1985, his claim fails. The elements

of civil conspiracy are "(1) an agreement between two or more persons; (2) to participate in an

unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act

performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in

furtherance of the common scheme." Halberstam v. Welch, 705 F.2d 472,477 (D.C. Cir. 1983).

Here, plaintiff s allegations as to the existence if a conspiracy are insufficient, as conc1usory

allegations of an agreement will not suffice. See, e.g., Brady v. Livingood, 360 F. Supp. 2d 94,

104 (D.D.C. 2004) (mere allegation that defendants "agreed among themselves" to subject

plaintiff to discriminatory acts, without alleging facts suggesting that the defendants were acting

in concert in furtherance of a shared goal of discriminating against him not sufficient) (footnote

and citations omitted).

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.)

Accordingly, the Court will dismiss the complaint under 28 U.S.C. § 1915A(b)(1) for

failure to state a claim upon which relief can be granted. An Order consistent with this

Memorandum Opinion will be issued separately on this date.

Date: ~ U, ~o0Cf

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