FILED

UNITED STATES DISTRICT COURT AUG 2 1 2015

FOR THE DISTRICT OF COLUMBIA Clerk, US. District & Bankruptcy
Courts for the District of Columbia

JOSEPH D. MIDYETTE, . )
)
Plaintiff, )
) Case: 1:15-cv-01356
v. ) Assigned To : Unassigned
) Assign. Date : 8/21/2015
U.S. JUDGE TERRENCE W. BOYLE, et a1, ) Description: Pro Se Gen. Civil (F Deck)
)
Defendants. )
W

This matter is before the Court on plaintiff 5 application to proceed in forma pauperis and

his pro se civil complaint. The application will be granted, and the complaint will be dismissed.

According to plaintiff, he “has been harmed by multiplicitous indictments and
multiplicitous sentencing,” because he has been charged and convicted of “violating the same
statute against the same victim at the same time and location,” resulting in “three . . . consecutive
sentences.” Compl. at 1.] He has alleged that Terrance W. Boyle, United States District Judge,
United States District Court for the Eastern District of North Carolina, and Pat McCrory, the
Governor of North Carolina, conspired to deny his “colorable and cognizable pro se motions and
request[s] for relief from the illegal sentencing.” Id. at 2. Judge Boyle allegedly “denied
[plaintiff] access to the court by . . . dismissing his 2254 motion seeking relief as time barred.”

1d.2 Governor McCrory allegedly denied plaintiff “relief from the illegal sentencing through

‘ The Court of Appeals of North Carolina rejected plaintiff’ s argument that “the same evidence was used by the
State to obtain his conviction on each of the three charges of second degree rape” and the assertion that “his
conviction and punishment for three separate rapes is in violation of the double jeopardy provisions of the North
Carolina and United States constitutions.” State v. Midyette, 360 SE. 2d 507, 508 (N .C. Ct. App. 1987), aﬂ’d, 366
SE. 2d 440 (NC. 1988)

2 See Midyette v. Perry, 594 F. App’x 191, 191 (4th Cir. 2015) (per curiam) (dismissing appeal of district court’s
order dismissing as untimely plaintiff‘s § 2254 petition).

executive clemency.” Id. Plaintiff now asks this “Court to vacate all but one of the three . . .
multiplicitous sentences[,] declare judgement satisﬁed on [the] remaining sentence and order

p1aintifﬂ’]s release from custody.” Id. at 3.

“[E]lements of civil conspiracy include[]: (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 (DC. Cir. 1983). Plaintiffs mere mention of a conspiracy between Judge Boyle
and Governor McCrory without alleging facts to support the claim is insufﬁcient as a matter of

law. See Bush v. Butler, 52] F. Supp. 2d 63, 69 (D.D.C. 2007).

Insofar as plaintiff demands his release from custody, his remedy, if any, is through a
petition for a writ of habeas corpus brought in the district where he is incarcerated and where his
custodian is located. See Preiser v. Rodriguez, 41 1 US. 475, 500 (1973) “[W]hen a state
prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus”); Rumsfeld v. Padilla, 542
US. 426, 434-35 (2004); Stokes v. US. Parole Comm ’n, 374 F.3d 1235, 1239 (DC. Cir. 2004).3
And if the Court were to construe the complaint as a request for clemency, the claim is subject to

dismissal for lack of subject matter jurisdiction. See Connecticut Bd. of Pardons v. Dumschal,

3 Federal court review of a state court conviction ordinarily would be available under 28 U.S.C. § 2254 aﬁer
exhaustion of state remedies, see id. § 2254(b)(1), either in the district where plaintiff is in custody or in the district
where the sentencing court is located, see id. § 2254(d). Plaintiffs effort to obtain relief under § 2254 was
unsuccessful. See Midyette, 594 F. App’x at 191.

452 US. 458, 464 (1991) (“[P]ardon and commutation decisions have not traditionally been the

business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review”).

The complaint and this civil action therefore will be dismissed for failure to state a claim
upon which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(l). An Order

consistent with this Memorandum Opinion is issued separately.

 may 

United States District Judge

