Avila v. Russell et al

Filing 6

ORDER OF DISMISSAL dismissing Complaint pursuant to either 28 U.S.C. §1915A(b)(1)-(2) or 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim. The Clerk of Court shall enter judgment accordingly, and close this case. Signed by Judge John E. Steele on 6/16/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RAYMOND LUIS AVILA, of the family
Avila Raymond Luis Avila Cestui Que
Trust,
Plaintiff,
vs.

Case No.

2:14-cv-326-FtM-29DNF

STEPHEN B. RUSSELL and DONALD MASON,
Defendants.
___________________________________
ORDER OF DISMISSAL
This matter comes before the Court upon initial review of the
file.

Plaintiff Raymond Luis Avila, who is proceeding pro se,

initiated this action as a prisoner by filing a Civil Rights
Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1, Complaint) on June
11, 2014.

Plaintiff accompanied the filing of his Complaint with

an incomplete motion for leave to proceed in forma pauperis.
docket.

See

Because the Court finds this action subject to dismissal,

the Court will not await the filing of a complete application to
proceed as a pauper.
I.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious, or
fails to state a claim upon which relief can be granted; or seeks
monetary relief from a defendant who is immune from such relief.”
See 28 U.S.C. § 1915A(a), (b)(1), (b)(2).

In essence, § 1915A is

a screening process to be applied sua sponte and at any time during
the proceedings.

In reviewing a complaint, however, the Court

accepts the allegations in the complaint as true, Boxer v. Harris,
437

F.3d

1107,

established

1110

rule

(11th

that

pro

Cir.
se

2006),

complaints

and

applies

are

to

be

the

long

liberally

construed and held to a less stringent standard than pleadings
drafted

by

attorneys.

Erickson

v.

Pardus,

551

U.S.

89,

94

(2007)(citations omitted).
Pursuant to § 1915A, the Court “shall” dismiss the complaint,
if, inter alia, it fails to state a claim upon which relief may be
granted.

See also § 1915(e)(2).

The standard that applies to

dismissals under Fed. R. Civ. P. 12(b)(6) applies to dismissals
under §1915A and § 1915(e)(2)(b)(ii).

Leal v. Georgia Dep’t of

Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001); Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008); Mitchell v. Carcass, 112 F.3d
1483, 1490 (11th Cir. 1997).
Under Rule 12(b)(6), the court views all allegations in the
Complaint as true and construes them in the light most favorable to
the Plaintiff.
Cir. 2008).

Pielage v. McConnell, 516 F.3d 1282, 1284 (11th

Conclusory allegations, however, are not entitled to

a presumption of truth.

Ashcroft v. Iqbal, 556 U.S. 662, 678-679

(2009)(discussing a 12(b)(6) dismissal); Marsh v. Butler County,
Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).

Nonetheless, a

complaint is subject to dismissal for failure to state a claim if

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the facts as plead do not state a claim for relief that is
plausible on its face.
(2007).

Bell Atlantic v. Twombly, 550 U.S. 544, 556

A claim is plausible where the plaintiff alleges facts

that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Ashcroft, 556

U.S. 662, 678. The plausibility standard requires that a plaintiff
allege sufficient facts “to raise a reasonable expectation that
discovery will reveal evidence” that supports the plaintiff’s
claim.

Twombly, 550 U.S. at 556.

Specifically, “[w]hile a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Id. at 555 (citations

omitted). Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.

Ashcroft, 556 U.S. at 678. “Nor does a complaint

suffice if it tenders naked assertions devoid of further factual
enhancement.”

Id.

Instead, “[f]actual allegations must be enough

to raise a right to relief above the speculative level.”

Twombly,

550 U.S. at 555.
II.
Plaintiff files this action pursuant to 42 U.S.C. § 1983
against Stephen Russell and Donald Mason, who he identifies as the
State Attorney for the Twentieth Judicial Circuit Court and a State

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Circuit Judge for the Twentieth Judicial Circuit.

Complaint at 1.

Under the “Statement of Claim” portion of the Complaint, Plaintiff
lists

29

different

violations

ranging

from

“impersonating

an

officer in violation of oath of office,” “breach of fiduciary
duties,” to “constructive treason,” inter alia.

See generally

Complaint at 6.
According to the Complaint, on April 1, 2013, Plaintiff served
defendants by certified mail with an “agreement” calling for
Plaintiff’s release from custody if the defendants failed to
respond within 30 days.
defendants

failed

to

Id. at 9-10.

respond

and

Plaintiff asserts that

therefore

consented

to

his

release. Id. As relief, Plaintiff requests that the Court enforce
the contract between the parties and issue his immediate release
and/or vacate his criminal judgment.

Id. at 7-8.

In short,

Plaintiff challenges his continued detention by the Secretary of
the Florida Department of Corrections, but does not attack his
criminal conviction, which was apparently entered in the Twentieth
Judicial Circuit Court.

See Complaint.
III.

Upon review, the Court finds this action subject to dismissal.
Title 42 U.S.C. § 1983 imposes liability on anyone who, under color
of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.” To state a claim
under 42 U.S.C. § 1983, Plaintiff must allege: (1) Defendants

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deprived

him

of

a

right

secured

under

the

United

States

Constitution or federal law, and (2) such deprivation occurred
under color of state law.

Arrington v. Cobb County, 139 F.3d 865,

872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001).
Here,
dismissal.

the

Complaint

is

fatally

flawed

and

subject

to

Initially, the Court cannot conceive of any violation

of federal law stemming from Plaintiff’s allegation that he served
defendants by certified mail with an “agreement” to which their
failure to respond secured his release from prison.
To the extent Plaintiff pursues this action against defendants
stemming

from

their

involvement

in

his

underlying

conviction, the defendants are entitled to immunity.

criminal

While “[o]n

its face, § 1983 admits no immunities,” the Supreme Court has
“consistently recognized that substantive doctrines of privilege
and immunity may limit the relief available in § 1983 litigation.”
Tower v. Glover, 467 U.S. 914, 920 (1984).

Both qualified and

absolute immunity defenses bar certain actions. Id. To the extent
Plaintiff

sues

the

State

Attorney,

Stephen

Russell,

for

his

involvement in Plaintiff’s criminal prosecution, the Complaint
fails to state a claim because a prosecutor is entitled to absolute
immunity from liability for actions undertaken in furtherance of
the criminal process.

Imbler v. Pachtman, 424 U.S. 409, 430-31

(1976); Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279 (11th

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Cir. 2001). In determining whether prosecutorial immunity applies,
courts look to “‘the nature of the function performed, not the
identity of the actor who performed it.’”

Rivera v. Leal, 359 F.3d

1350, 1353 (11th Cir. 2004) (quoting Forrester v. White, 484 U.S.
219, 229 (1988)).

“A prosecutor is entitled to absolute immunity

for all actions he takes while performing [her] function as an
advocate for the government.” Rivera, 359 F.3d at 1353 (citing
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)).

Absolute

immunity extends to a prosecutor’s acts performed “in preparing for
the initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the State.”
Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999)(citations
omitted).

The prosecutor Plaintiff names as a defendant in this

action is clearly entitled to absolute prosecutorial immunity based
on the allegations in the Complaint.

See Smith v. Shorstein, 217

F. App’x 877 (11th Cir. 2007).
Similarly,

judges

are

also

absolutely

immune

from

civil

liability under 42 U.S.C. § 1983 for any acts performed in their
judicial capacity, providing such acts are not done in clear
absence of all jurisdiction.

Bolin v. Story, 225 F.3d 1234, 1239

(11th Cir. 2000) (citing Stump v. Sparkman, 435 U.S. 349, 356-357)
(1978); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996));
see also Mireles v. Waco, 502 U.S. 9, 12-13 (1991).

“This immunity

applies even when the judge’s acts are in error, malicious, or were

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in excess of his or her jurisdiction.”
(citing Stump, 435 U.S. at 356).

Bolin, 225 F.3d at 1239

To the extent that Plaintiff

pursues this action against Defendant Mason based on actions the
judge took within the scope of his judicial authority, absolute
judicial

immunity

precludes

Plaintiff’s

civil

action

against

Defendant Mason.
ACCORDINGLY, it is hereby
ORDERED:
1.

The § 1983 Complaint is DISMISSED pursuant to either 28

U.S.C. §1915A(b)(1)-(2) or 28 U.S.C. §1915(e)(2)(B)(ii) for failure
to state a claim.
2.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of June, 2014.

sa: alr
Copies: All Parties of Record

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