Morris v. Section 794.05, Florida Statutes, et al

Filing 8

ORDER OF DISMISSAL dismissing 1 Amended Complaint without prejudice pursuant to § 1915(e)(2)(B)(ii). The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 9/30/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CLEVELAND MORRIS,
Plaintiff,
v.

Case No: 2:14-cv-518-FtM-29CM

SECTION
794.05,
STATUTES, ET AL,

FLORIDA

Defendant.
ORDER OF DISMISSAL
This matter comes before the Court upon review of the file.
Plaintiff Cleveland Morris, proceeding pro se, initiated this
action as a prisoner in the custody of the Secretary of the Florida
Department of Corrections by filing an “Amended Complaint” (Doc.
#1, Complaint) and attached exhibits (Doc. #1-1-#1-4, Exhs. A-D).
Plaintiff seeks leave to proceed in forma pauperis. 1

See Doc. #2.

I.
The sole defendant named in the Amended Complaint is “Section
794.05, Fla. Statutes.”

1On

Amended Complaint at 1.

Plaintiff’s

September 5, 2014, the Court entered a Standing Order
directing Plaintiff to file his prisoner consent form within thirty
days from the date on the Order. See Doc. #3. The Court warned
that failure to do so within the time allotted would result in the
dismissal of the action without further notice. On September 22,
2014, Plaintiff filed a “prisoner financial certificate.”
See
Doc. #6. This prisoner financial certificate is incomplete and
does not contain the prisoner consent form.
Id. The Court,
nonetheless, finds this action subject to dismissal and will not
further direct nor await the filing of the prisoner consent form.

certificate of service, however, lists Stephen Russell, State
Attorney for the Twentieth Judicial Circuit.

Id. at 14.

The factual allegations contained in the Amended Complaint
are far from clear.

Under the “statement of claim” portion of the

Amended Complaint, Plaintiff writes “[t]his is an Action pursuant
to the Divine Law, Constitution and Laws of the [U]nited [S]tates
of America, the Law among the parties and State law.”

Id. at 4.

Similar to Plaintiff’s previous federal civil actions, it appears
he

initiates

the

instant

action

in

attempt

to

challenge

the

“information” filed in his state criminal case that arose in the
Twentieth Judicial Circuit 2

Plaintiff alleges that State Attorney

Stephen Russell filed an “unverified information” on January 8,
2004.

Id. at 4.

The information alleged a single violation of

Florida Statutes § 794.05.

Id. at 5.

Plaintiff claims this

information “is not valid for the prosecution of a felony.”

Id.

Plaintiff further claims that the State court lacks “subject matter
jurisdiction.”

Id.

Elsewhere in the Amended Complaint, Plaintiff

alludes to a purported unilateral agreement in which Stephen
Russell’s non-response results in “discharge” of Plaintiff from
custody.

Id. at 7-9.

As relief, Plaintiff seeks inter alia

2Plaintiff

has filed other civil actions alleging similar
facts, which have all been dismissed. See Case No. 2:13-cv-693FTM-29UAM (construing “affidavit of non-response to be a petition
for writ of habeas corpus); 2:14-cv-116-FtM-38DNF (dismissing §
1983 action against Stephen Russell); and, 2:14-cv-385-FtM-38CM
(dismissing § 1983 action against Stephen Russell).

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declaratory

relief

“relative

to

their

[Plaintiff

and

Stephen

Russell’s] commercial intercourse”; a declaration that the statute
he was convicted of is invalid; and all other relief deemed proper
by this Court.

Id. at 12.
II.

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, 1110 (11th Cir. 2006), and applies the
long established rule that pro se complaints are to be 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).

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Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008); Leal v. Georgia Dep’t of Corr., 254
F.3d 1276, 1278-79 (11th Cir. 2001); 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
the facts as plead do not state a claim for relief that is plausible
on its face.
A

claim

is

Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
plausible

where

the

plaintiff

alleges

facts

that

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

662,

plaintiff

678.

The

plausibility

allege

sufficient

facts

standard
“to

Ashcroft, 556

requires

raise

a

that

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

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recitation of the elements of a cause of action will not do.”
at

555

(citations

omitted).

Thus,

harmed me accusation” is insufficient.

Id.

“the-defendant-unlawfully
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.
III.

A.

Florida Statute § 794.05 is not sui juris

Plaintiff names “Section 794.05, Florida Statutes” as the
sole defendant.

See Amended Complaint at 1.

Federal Rule of

Civil Procedure 17(b) governs the capacity to sue or be sued.

The

Rule’s first two provisions do not expressly identify a “statute”
as an entity that can sue or be sued.
(2).

Fed. R. Civ. P. 17(b)(1)-

Its status as a litigant thus depends “on the law of the

state where the court is located.”

Fed. R. Civ. P. 17(b)(3).

There is no case law supporting the finding that a Florida Statute
may be named as a defendant.

Accordingly, this action is subject

to dismissal for failure to name a sui juris defendant.
B.

Stephen Russell is entitled to prosecutorial immunity

To the extent the Amended Complaint can be construed as naming
Stephen Russell, the State Attorney for the Twentieth Judicial
Circuit, as the defendant, the action is also subject to dismissal.

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An online web inquiry on the Florida Department of Corrections
website and the Twentieth Judicial Circuit Court website reveals
the

following

Florida

information.

Department

of

www.dc.state.fl.us.

Plaintiff

Corrections

On

September

on
11,

was

received

September
2006,

into
20,

Petitioner

the

2006.
plead

guilty for violating Florida Statute § 794.051, sexual activity
with a 16 or 17 year old by a 24 year old, in case number 03001554F,
in the Twentieth Judicial Circuit Court located in Charlotte
County,

Florida.

See

www.co.charlotte.fl.us.

Petitioner’s

anticipated release date from the Department of Corrections is
October 9, 2014. 3

www.dc.state.fl.us.

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.

The Amended Complaint fails to state a claim against Stephen

Russell because prosecutors are 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 Cir. 2001).

3The

Court refers to Plaintiff’s “anticipated” release date
to take into account that the date is subject to change based on
pending gain time award, gain time forfeiture, or review, and any
possible detainers. See www.dc.state.fl.us.

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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 his 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.”
F.3d

1271,

1281

(11th

Cir.

Jones v. Cannon, 174

1999)(citations

omitted).

The

prosecutor Plaintiff names as a defendant in this action is clearly
entitled

to

absolute

prosecutorial

allegations in the Amended Complaint.
F. App’x 877 (11th Cir. 2007).

immunity

based

on

the

See Smith v. Shorstein, 217

Further, even if Mr. Russell was

not entitled to prosecutorial immunity, the claim alleged in the
Amended Complaint, arising from a unilateral agreement initiated
by Plaintiff to Mr. Russell by mailing a document purported to be
a contract, is entirely implausible.
The Court declines to construe the instant action initiated
by the filing of the “Amended Complaint” as a habeas corpus action.
The

Amended

Complaint

seeks

declaratory

specifically seek release from custody.

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relief

and

does

not

See Preiser v. Rodriquez,

411 U.S. 475 (1973) (noting in dicta that a state prisoner seeking
only monetary damages “is attacking something other than the fact
or length of . . . confinement, and . . . is seeking something
other than immediate or more speedy release [,] . . . a damages
action by a state prisoner could be brought under [ § 1983] in
federal court without any requirement of prior exhaustion of state
remedies.”); Heck v. Humphrey, 512 U.S. 477 (defining the core of
habeas corpus as challenges to the fact, duration, or nature of
confinement).

Additionally, the Court notes that it previously

construed one of Plaintiff’s prior actions as a habeas action and
provided

Plaintiff

completion. 4

a

pre-printed

§

2254

habeas

See Case No. 2:13-cv-693-FTM-29UAM.

form

for

his

Plaintiff did

not respond to the Court’s Order and the case was dismissed,
without prejudice, subject to the statute of limitations, on
October 21, 2013.

Based on the foregoing, the Court dismisses

4 In

case number 2:13-cv-693-FTM-29UAM, the Court in the
abundance of caution construed Plaintiff’s “affidavit of nonresponse” to be a habeas action. See Doc. #9.
In that case,
Plaintiff attested that he “mailed a Demand for Certification of
Constitutionality” to State Attorney Stephen Russell on July 21,
2013, granting Mr. Russell three days in which to certify the
constitutionality of § 794.011. Plaintiff further stated that he
told Mr. Russell that his failure to “offer an appropriate
pleading” within this time period would result in default and an
admission that Petitioner is unlawfully imprisoned. Id. at 1. In
response, the Court provided Plaintiff a copy of the standardized
form used in habeas actions and directed him to complete the form
and return it within a time period if he wished to proceed with
the action. See Doc. #3, Doc. #9.

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this action, without prejudice, for failure to state a claim
pursuant to § 1915.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Amended Complaint is DISMISSED, without prejudice,

pursuant to § 1915(e)(2)(B)(ii) for the reasons herein.
2.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of September, 2014.

SA: alr
Copies: All Parties of Record

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30th

day