Jones v. Steinbeck et al

Filing 9

ORDER OF DISMISSAL dismissing complaint pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state a claim upon which relief may be granted; denying 5 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 11/24/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
REGINALD TIMOTHY JONES,
Plaintiff,
v.

Case No: 2:14-cv-557-FtM-29CM

MARK STEINBECK, EDWARD J.
VOLZ,
JR.,
STEPHEN
B.
RUSSELL, DAVID T. MAIJALA,
DEVIN S. GEORGE, and ROBERT
J. BRANNING,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court upon periodic review of
the file.

Plaintiff Reginald Timothy Jones (“Plaintiff”), who is

proceeding pro se, is currently being held at the Sarasota County
Jail

in

Sarasota,

Florida.

Plaintiff

initiated

this

action

against Circuit Court Judge Mark Steinbeck, Circuit Court Judge
Edward J. Volz, Jr., State Prosecutor Stephen B. Russell, State
Prosecutor David T. Maijala, and private defense attorney Robert
J. Branning by filing a civil rights complaint pursuant to 42
U.S.C. § 1985(3) (Doc. 1, filed September 24, 2014, Complaint).
Plaintiff has also filed a motion to proceed in forma pauperis
(Doc. 5).
Because Plaintiff seeks to proceed in forma pauperis, the
Court

must

review

his

complaint

to

determine

whether

it

is

frivolous, malicious, or fails to state a claim upon which relief

may be granted.

See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).

In

essence, § 1915(e)(2) is a screening process to be applied sua
sponte and at any time during the proceedings.
For the reasons set forth in this Order, Plaintiff's complaint
is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).
I.

Complaint
Plaintiff has attached numerous documents to his complaint in

support of the allegations contained therein. However, he has not
set forth a sequential statement of the facts which he believes
entitle him to relief.

Rather, all of the factual allegations

contained under the “Facts” portion of the complaint pertain to
either Plaintiff's criminal conviction based on the entry of a
plea, his subsequent violation of probation, or the collateral
motions he filed thereafter (Doc. 1 at 2-16).
instant

complaint,

its

numerous

attachments,

After reading the
and

a

previous

complaint filed on January 30, 2014 1 and construing Plaintiff's
allegations liberally, Plaintiff claims the following:

1

On January 30, 2014, Plaintiff filed a complaint against
the same defendants, raising substantially identical claims (MDFL
Case No. 2:14-cv-58-JES-DNF).
In his first action, Plaintiff
stated that he raised the claims under “[18] U.S.C. 241: Conspiracy
Against Rights.”
The Court construed the complaint as being
raised pursuant to 42 U.S.C. § 1983 (there is no private right of
action under 18 U.S.C. § 241) and dismissed the complaint for
failure to state a claim upon which relief may be granted.
Specifically, the Court concluded that each defendant was either
immune from liability or was not a state actor subject to suit in
§ 1983 actions. Id. at Doc. 7. In the instant complaint, Plaintiff
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Sometime in 2007, Plaintiff's defense attorney Robert J.
Branning “conspired with David T. Maijala by depriving him a
trial,” presumably by encouraging Plaintiff to enter a guilty plea
(Doc. 1 at 10). Plaintiff provides no specific date for the alleged
conspiracy.
Twentieth

According to a public web based inquiry on the

Judicial

Circuit’s

website,

Plaintiff

has

numerous

criminal convictions before the Twentieth Judicial Circuit and
County Courts. See www.leeclerk.org.

The only circuit criminal

case the Court located with Judges Volz and Steinbeck as the
presiding circuit court judges and Devin George as the assistant
state attorney is case number 05-cf-018068.

According to the

docket sheet in this case, on November 5, 2007, Plaintiff entered
a nolo contendere plea to four counts: (1) cash/deposit with intent
to defraud; (2) grand theft; (3) cash/deposit with intent to
defraud; and (4) cash/deposit with intent to defraud.

Id.

That

same day, Plaintiff was placed on probation by Judge Steinbeck.
In 2009, Judge Steinbeck found that Plaintiff violated the terms
of his probation and Plaintiff was sentenced to prison.

Id.

The gravamen of the instant complaint appears to be that
Plaintiff sought to withdraw his guilty plea on November 16, 2007,
and the request was orally denied by Judge Steinbeck (Doc. 1-5).
Plaintiff asserts that Judge Steinbeck failed to file a written

raises the same claims pursuant to 42 U.S.C. § 1985(3) (Doc. 1 at
2).
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order on the denial of the change of plea, which meant that
Plaintiff's motion to withdraw his plea was not final.

Therefore,

Plaintiff alleges that Judge Steinbeck lacked jurisdiction to find
that Plaintiff had violated the terms of his probation, or to send
him to prison as a result thereof, because Plaintiff had never
been placed on probation (due to the allegedly pending motion to
withdraw his plea). See generally, Complaint.

Plaintiff claims

that he filed numerous post-conviction motions in the state court
and an appeal to Florida’s Second District Court of Appeal on this
issue, but they were unsuccessful because of the defendants’
conspiracy.
estoppel

Id.

He

method”

asserts

to

deny

that

Defendant

Plaintiff

George

relief

from

“used
an

the

ongoing

conspiracy and to deny Plaintiff's motion to dismiss the pending
violation of probation (Doc. 1 at 7).

He alleges that Judge

Steinbeck and Judge Volz were openly biased against him (Doc. 1 at
9).

He alleges that Defendant Maijala manipulated the Lee County

Clerk’s computer records to show that Plaintiff had a longer
criminal record than he actually had (Doc. 1 at 11-12).

He alleges

that “each time the Plaintiff filed post-conviction methods to
request relief on his illegal sentence, even with proof of laws of
Florida being violated was met with denials.” (Doc. 1 at 13).
II.

Legal Standards
A

federal

district

court

is

required

to

review

a

civil

complaint filed in forma pauperis and to dismiss any such complaint

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that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915.

The mandatory language

of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis.
Section 1915 provides:
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
determines that(A)

the allegation of poverty is untrue;
or

(B) the action or appeal(i)

is
frivolous
malicious;

or

(ii)

fails to state a claim on
which
relief
may
be
granted; or

(iii)

seeks
monetary
relief
against a defendant who
is
immune
from
such
relief.

28 U.S.C. § 1915(e)(2).
A

complaint

may

be

dismissed

as

frivolous

under

§

1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A claim is

frivolous as a matter of law where, inter alia, the defendants are
immune from suit or the claim seeks to enforce a right that clearly
does not exist. Id. at 327.

In making the above determinations,

all factual allegations in the complaint must be viewed as true.
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).

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Moreover,

the Court must read the plaintiff’s pro se allegations in a liberal
fashion. Haines v. Kerner, 404 U.S. 519 (1972).
III. Analysis
a.

Plaintiff has not stated a claim under 42 U.S.C. §
1985(3)

The United States Supreme Court has identified the elements
of a 42 U.S.C. § 1985(3) claim as “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or
privilege of a citizen of the United States.” United Bhd. of
Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983).
Furthermore, in order to maintain a claim under § 1985(3), a
plaintiff must show that the defendants were motivated by racial
or class-based “invidiously discriminatory animus.” Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971); see also Burrell v. Board
of Trustees of Ga. Mil. C., 970 F.2d 785, 793-94 (11th Cir. 1992)
(stating elements of a claim and noting that the intent requirement
of § 1985(3) “erects a significant hurdle for . . . plaintiffs”).
In this case, Plaintiff has not come forward with any evidence
or argument that the defendants' acts were motivated by racial or
“invidiously discriminatory animus.”

Rather, Plaintiff merely

ponders that he “has wondered over the years if the possibility of

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race is a factor in this full blown constitutional violations.

At

no time did any of the defendants care or get involved to correct
the wrong that was clearly visible during this 9 year incident.”
(Doc. 1 at 16).

Plaintiff's speculations are insufficient to

state a claim for relief based on 42 U.S.C. § 1985(3) and are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
b.

Plaintiff has not stated a claim under 42 U.S.C. § 1983

To the extent Plaintiff seeks to re-raise these claims under
42 U.S.C. § 1983 for violations of his civil rights, he has not
corrected the deficiencies that lead to the dismissal of the
complaint in case number 2:14-cv-58-FtM-29DNF.

As was explained

to Plaintiff in this Court’s prior detailed order of dismissal,
the defendants in this case are immune from liability under 42
U.S.C. § 1983.

This Court’s prior order stated:

Here, the Complaint is fatally flawed and
subject to dismissal. 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 Complaint fails to state a claim against
Stephen Russell and Devin George 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). In determining whether
prosecutorial immunity applies, courts look to
“‘the nature of the function performed, not
the identity of the actor who performed it.’”

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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 prosecutors
Plaintiff names as Defendants in this action
are 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, 356357 (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 in excess of
his or her jurisdiction.” Bolin, 225 F.3d at
1239 (citing Stump, 435 U.S. at 356).
According to the Complaint, Plaintiff seeks
relief against Judges Steinbeck and Volz based
on the rulings these Judges entered in
Plaintiff's
criminal
case,
violation
of
probation, or postconviction motions. Thus,
it is clear that Plaintiff pursues this action
against Defendants Steinbeck and Volz based on
actions they took within the scope of their
judicial authority. Consequently, absolute
judicial immunity precludes Plaintiff’s civil
action against Defendants Steinbeck and Volz.
Finally, Plaintiff attributes liability on
defense attorneys who apparently represented

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him during either his criminal prosecution or
violation
of
probation
thereafter.
See Complaint.
The public defender, David
Maijala, is not considered a “person” acting
under the color of State law. Vega v. Fitz,
Case No. 2:13-cv-51-FTM-29DNF, 2013 WL 314448,
*2 (M.D. Fla. Jan. 28, 2013)(finding a public
defender is not subject to liability under
section 1983)(citing Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981)).
A defense attorney,
whether
court
appointed,
or
privately
retained, represents only his client, not the
state. Polk, 454 U.S. at 312. Significantly,
the United States Supreme Court held that “a
public defender does not act under the color
of state law when performing a lawyer’s
traditional
functions
as
counsel
to
a
defendant in a criminal proceeding.”
See
Polk, 454 U.S. at 325 (footnote omitted).
To the extent Plaintiff attributes liability
on his private defense counsel, Robert
Branning, for conspiracy with the other named
defendants, Branning is not considered a state
official subject to liability under § 1983.
“[T]o act under the color of state law for
(Section) 1983 purposes does not require that
the Defendant be an officer of the State. It
is enough that he is a willful participant in
joint action with the State or its agents.”
Harvey v. Harvey, 949 F.2d 1127, 1133 (11th
Cir. 1992)(citing Dennis v. Sparks, 449 U.S.
24, 27 (1980)).
However, when a court
determines that none of the other defendants
are state actors for purposes of § 1983, then
all parties retain their private status; and,
no state actor exists with whom conspiracy is
possible. Id. Therefore, Defendants Branning
and Maijala are not subject to liability under
42 U.S.C. § 1983.
(MDFL Case No. 2:14-cv-58-FtM-29DNF at Doc. 7)(footnotes omitted).
The prior order further concluded that Plaintiff had not set forth
a § 1983 conspiracy claim because:

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To set forth a conspiracy claim under section
1983, “the plaintiff must plead in detail,
through reference to material facts, the
relationship or nature of the conspiracy
between the state actor(s) and the private
persons.
Harvey, 949 F.2d at 1133 (citing
Fullman v. Graddick, 739 F.2d 553, 556-57
(11th Cir. 1984)).
Here, the Complaint
contains
only
conclusory
and
fantastic
allegations concerning the conspiracy amongst
the named defendants. The Complaint contains
no facts that could prove private and alleged
state actors “had ‘reached an understanding’
to violate [plaintiff’s] rights.” Id. (citing
Strength v. Hubert, 854 F.2d 421, 425 (11th
Cir. 1988)(citations omitted)).
Id.

As in his first complaint, none of the additional allegations

raised in the instant complaint demonstrate that these defendants
are not immune from liability under § 1983.

Nor has Plaintiff

alleged facts sufficient to set forth a § 1983 conspiracy claim.
Plaintiff's complaint does not state a claim for relief based on
42 U.S.C. § 1983 and any § 1983 claims are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii).
c.

Plaintiff's claims for damages are barred by Heck v.
Humphrey

Plaintiff does not identify the relief sought.

To the extent

he seeks monetary damages, Plaintiff is not entitled to relief.
When a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff
would

necessarily

imply

the

invalidity

of

his

conviction

or

sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has

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already been invalidated. Heck v. Humphrey, 512 U.S. 477, 487
(1994). In order to recover damages for an alleged unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a 42 U.S.C. § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court's
issuance of a writ of habeas corpus. Id. at 486-487.

A claim for

damages bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under § 1983. 2 Id.
at 487.
It is clear from the instant complaint that the conviction
about which Plaintiff complains has not been invalidated in an
appropriate

proceeding.

Consequently,

the

instant

collateral

attack on the conviction is prohibited because habeas corpus is

2

The ruling in Heck applies to Plaintiff's claims under § 1985 as
well. See McQuillon v. Schwarzenegger, 369 F.3d 1091, 1098 n.4
(9th Cir. 2004) (“We agree with our sister circuits that Heck
applies equally to claims brought under §§ 1983, 1985 and 1986”);
Lanier v. Bryant, 332 F.3d 999, 1005–06 (6th Cir. 2003) (applying
Heck to § 1985 action); Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir.
1999) (“Heck therefore applies with respect not only to plaintiff's
§ 1983 claim but also to his §§ 1981, 1985(3) and 1986 claims”);
Descent v. Kolitsidas, 396 F.Supp.2d 1315, 1319 (M.D . Fla. 2005)
(applying Heck bar to plaintiff'So.3s claim under section 1985
that the defendants conspired to interfere with his criminal trial
by intimidating him and witnesses favorable to his defense).

- 11 -

the exclusive remedy for a state prisoner who challenges the
validity of the fact or duration of his confinement. Edwards v.
Balisok, 520 U.S. 641, 645 (1997); Heck, 512 U.S. at 481; Preiser
v. Rodriguez, 411 U.S. 475, 488–490 (1973).

Such attack is,

therefore, subject to summary dismissal by this court in accordance
with the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii).
ACCORDINGLY, it is hereby ORDERED:
1.

The

complaint

is

DISMISSED

pursuant

to

28

U.S.C.

§1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state
a claim upon which relief may be granted.
2.

Plaintiff's

motion

for

leave

to

proceed

in

forma

pauperis (Doc. 5) is DENIED.
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 November, 2014.

SA: OrlP-4
Copies: Reginald Timothy Jones
Counsel of Record

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24th

day