Riggs v. Brooks et al
ORDER, 18 Report and Recommendation; OVERRULING Plaintiff's 19 Objections; DENYING 15 Motion to Amend 28:2254 Writ of Habeas Corpus; GRANTING in part and DENYING in part 21 Motion to Amend; and permitting Plaintiff to file, no later th an 4/12/2019, (1) an amended complaint under 42:1983; (2) a habeas petition pursuant to 28:2254; or (3) separately, an amended Section 1983 complaint and a Section 2254 habeas petition as set out in Order. Signed by District Judge Terry F. Moorer on 03/08/2019. (copy to Pltf with copies of form 1983 complaint and 2254 habeas petition & 14 Order) (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JUDGE BEN H. BROOKS, et al.,
CIVIL ACT. NO. 1:17-cv-469-TFM-MU
MEMORANDUM OPINION AND ORDER
On September 20, 2019, the pro se plaintiff, Jessie Riggs (“Riggs” or “Plaintiff”), filed a
Motion to Amend 28 USCS § 2254 Writ of Habeas Corpus Pursuant to the Federal Rules of Civil
Procedure (“first motion to amend”) in response to the Court’s prior order (Doc. 14, filed
September 14, 2019) to amend his complaint to cure various deficiencies. See Doc. 15. On
December 21, 2018, the Magistrate Judge entered a Report and Recommendation (“R&R”) which
recommends that the Court deny Plaintiff’s motion. See Doc. 18. Plaintiff timely objected to the
Magistrate Judge’s R&R on January 3, 2019. See Doc. 19. Subsequent to filing his objections,
Plaintiff filed a Motion to Amend (Doc. 21, filed 2/19/19) (“new motion”). For the reasons
articulated below, the Court adopts the Magistrate Judge’s R&R, overrules the objections filed by
Plaintiff, denies Plaintiff’s first motion to amend, and grants Plaintiff’s new motion to the extent
STANDARDS OF REVIEW
Under 28 U.S.C. § 636(b)(1)(B), this court reviews de novo the portions of a magistrate
judge’s report to which objections are made.
Pleadings by pro se litigants “are held to a less stringent standard than pleadings drafted
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by attorneys and will, therefore, be liberally construed.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,
1253 (11th Cir. 2017). Nevertheless, all litigants, pro se or not, must comply with the Federal
Rules of Civil Procedure. Although the Court is required to liberally construe a pro se litigant’s
pleadings, “this leniency does not give a court license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v. Air Jam.
Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). (internal quotations and citation omitted); see also
Giles v. Wal-Mart Distrib. Ctr., 359 F. App’x 91, 93 (11th Cir. 2009) (“Although pro se pleadings
are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally,
this liberal construction does not give a court license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain an action.”) (internal citations and
“When a more carefully drafted complaint might state a claim, a plaintiff must be given at
least one chance to amend the complaint before the district court dismisses the action with
prejudice.” Evans, 850 F.3d. at 1254 (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001) (emphasis added) (internal quotations omitted)). However, “a district court need not allow
amendment when it would be futile.” Id. (citing Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th
Cir. 2007)). Leave to amend is futile when the amended complaint still would be immediately
subject to summary judgment for the defendant. Id. In determining futility, courts should err on
the side of generosity to the pro se plaintiff. Carter v. HSBC Mortg. Servs., Inc., 622 F. App’x
783, 786 (11th Cir. 2015) (citing O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197,
1206 (11th Cir. 2003)).
OBJECTIONS TO THE REPORT AND RECOMMENDATION
In his objections, Plaintiff appears to ask the Court to dismiss without prejudice his claims
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brought “improperly” under 42 U.S.C. § 1983, and to stay any decision on the R&R (Doc. 18) and
the underlying first motion to amend (Doc. 15) in order to “give this Petitioner a chance to properly
comply” with the Court’s order to amend his complaint (Doc. 14). Doc. 19 at 1. Plaintiff asserts
that he is “unlearned in the proper use of habeas procedure” and had attempted to proceed in this
action under both 42 U.S.C. § 1983 and 28 U.S.C. § 2254 based on his lack of understanding and
misguided advice from fellow inmates. Id. at 2.
Plaintiff concedes the Magistrate Judge’s finding that Plaintiff “did not include in his
complaint’s request for relief his release from confinement or the invalidation of his conviction,
sentence, or restraint causing his incarceration.” Id.; see also Doc. 18 at 2. However, he asserts
that such relief is the sole purpose of filing a claim under § 2254, and he was instructed by fellow
inmates to “just tell [his] story and the court [will] free you.” Doc. 19 at 2. He also appears to
assert, presumably in response to the Magistrate Judge’s statement that the complaint was not
submitted on a court-provided form, that the prison law library lacked the appropriate forms for
his action. Id.; also see Doc.18 at 2. Plaintiff requests that, in lieu of adopting the R&R and
dismissing this case, the Court consider “a dismissal without prejudice, or leave to file a successive
petition, or other relief the Court has the power to grant” in order to allow him to properly cure the
deficiencies “in a proper habeas corpus manner.” Doc. 19 at 2-3. He asserts that he has received
advice from an unnamed “organization” that nevertheless lacks the resources to fully assist him,
and that he wishes to litigate in this Court habeas corpus claims that were presented and
inadequately resolved in state court. Id. at 3.
MOTION TO AMEND (DOC. 21)
In his newest and motion recent motion, Plaintiff again seeks to amend his original
complaint in order to comply with the Court’s prior orders, asserting that he failed to understand
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the difference between habeas corpus and § 1983 procedures. Doc. 21. Plaintiff also requests that
the Court remove Judge Ben H. Brooks as a defendant in this case and add as a defendant the State
of Alabama. Id. at 2. In an accompanying memorandum, In Support of Habeas Corpus, Plaintiff
asserts that he intended to file a habeas action, not a § 1983 complaint, and asserts various claims
he seeks to bring, including ineffective assistance of counsel; that his sentence is excessive and
thereby unconstitutional; that Alabama’s Habitual Felony Offender Act is discriminatory and
unconstitutional; and actual innocence. Doc. 22.
As an initial matter, Plaintiff’s objections do not take issue with any of the Magistrate
Judge’s findings or legal conclusions, only with the recommended result. Indeed, Plaintiff’s
“objections” to the R&R concede the Magistrate Judge’s findings and merely attempt to explain
their cause. Based on those explanations, Plaintiff urges the Court to give him another opportunity
to properly amend his complaint and keep his case alive. However, contrary to what appears to be
Plaintiff’s underlying assumption, denying Plaintiff’s first motion to amend, as recommended,
does not necessitate dismissal of his case entirely. Thus, giving due and proper consideration to
all portions of the file deemed relevant to the issues and having conducted a de novo review of the
R&R, the Court OVERRULES Plaintiff’s objections and ADOPTS the Magistrate Judge’s R&R
as the opinion of the Court. Accordingly, the Court DENIES Plaintiff’s first motion to amend
As to Plaintiff’s new motion seeking to amend his pleadings, he states that he wishes to
proceed in this action under § 2254 and cites various claims he wishes to bring in a habeas petition.
However, it also appears that Plaintiff wishes to preserve his initial §1983 claims, presumably to
re-raise them in some future action, as he requests that the Court dismiss his § 1983 claims without
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prejudice merely to clear the way to proceed under § 2254.
The Court is mindful that Plaintiff was given an opportunity to amend his § 1983 complaint
to cure its deficiencies and that Plaintiff failed to comply, opting instead to file a motion to amend
his complaint to add new claims under § 2254. Nevertheless, the Court is also mindful that
Plaintiff is a pro se complainant, ostensibly without reliable access to the proper forms for filing
in this Court. See Evans, 850 F.3d at 1253. Finally, although claims under § 2254 may not be
raised jointly in a claim brought under § 1983, as these are discrete actions addressing different
types of claims and offering different modes of relief, both actions may be brought in this Court,
Therefore, in light of Plaintiff’s pro se status, his professed inability to procure the
appropriate court forms, and his timely filings in the case, the Court GRANTS the new motion to
the extent that Plaintiff is permitted a second opportunity to amend his complaint to cure its
deficiencies, as previously noted by the Court and by the Magistrate Judge in the R&R. As ordered
below, Plaintiff may refile his complaint with this Court under § 1983, or he may file a habeas
petition pursuant to § 2254, according to his intentions in this matter. Alternatively, if Plaintiff’s
intention is to bring both a § 1983 complaint and a § 2254 petition, Plaintiff may file them
separately but simultaneously with the Court, in which case the actions will be placed on separate
dockets to proceed individually as appropriate.
The Court reminds Plaintiff that, whichever way he elects to proceed, documents should
be filed on the appropriate Court forms; clearly set out the claims he seeks to raise under the
appropriate statute against the relevant defendants; and cure various other deficiencies as
previously noted by the Court. As to Plaintiff’s additional request in his motion to remove Judge
Ben H. Brooks as a defendant and add the State of Alabama, it is DENIED AS MOOT; Plaintiff
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is INSTRUCTED to list the intended defendants in his amended filings. The Court cautions
Plaintiff that this is his second opportunity to amend his original complaint; he is unlikely to
receive a third.
For the foregoing reasons, it is ORDERED as follows:
(1) The Magistrate Judge’s Report and Recommendation (Doc. 18) is ADOPTED;
(2) Plaintiff’s Objections (Doc. 19) are OVERRULED;
(3) Plaintiff’s Motion to Amend 28 USCS § 2254 Writ of Habeas Corpus Pursuant to the
Federal Rules of Civil Procedure (Doc. 15) is DENIED.
(4) Plaintiff’s Motion to Amend (Doc. 21) is GRANTED in part and DENIED in part.
The motion is granted to the extent that Plaintiff is hereby permitted to file with the
Court, no later than Friday, April 12, 2019, (1) an amended complaint under 42
U.S.C. § 1983; (2) a habeas petition pursuant to 28 U.S.C. § 2254; or (3) separately, an
amended § 1983 complaint and a § 2254 habeas petition, each addressing the relevant
claims under the respective statute. Plaintiff’s Motion to Amend is DENIED as moot
to the extent he seeks to remove Judge Ben H. Brooks as a defendant and add the State
of Alabama. Plaintiff is INSTRUCTED to list the intended defendants on his amended
The Clerk of Court is DIRECTED to mail Plaintiff this Court’s forms for filing a
complaint under § 1983 and a § 2254 habeas petition.
As explained above, Plaintiff is INSTRUCTED to return the form that represents his
intentions and what type of claim he wishes to file. If Plaintiff wishes to proceed in two separate
actions under § 1983 and § 2254, respectively, he may return both forms, and they will placed on
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separate dockets for individual adjudication. To be clear, the Court previously ordered that
Plaintiff correct several defects with regard to his § 1983 claims. See Doc. 14. Those issues still
remain if Plaintiff intends to proceed with a lawsuit under § 1983. As such, the Clerk of Court is
DIRECTED to send a copy of the prior Order (Doc. 14).
DONE and ORDERED this 8th day of March 2019.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
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