Witt v. Lee County Sheriff's Department et al
Filing
7
OPINION AND ORDER dismissing 1 Complaint without prejudice. The Clerk shall enter judgment accordingly and close the case. The Clerk is further directed to (1) open a new civil action, nature of suit 530, and docket the complaint as a § 224 1 habeas petition; (2) docket a copy of this order as docket entry two of the new case; and (3) send Plaintiff a 28 U.S.C. habeas corpus form with the new case number. Plaintiff must file an amended petition on the form within 21 days. Signed by Judge John E. Steele on 2/27/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN VICTOR WITT,
Plaintiff,
v.
Case No: 2:15-cv-119-FtM-29CM
LEE COUNTY SHERIFF’S
DEPARTMENT, FLORIDA
ATTORNEY GENERAL, STEPHEN
B. RUSSELL, STATE OF
FLORIDA, CHERRIE MCABEE,
and COURT ADMINISTRATION
(XIV),
Defendants.
OPINION AND ORDER
This matter comes before the Court upon review of a civil
rights complaint filed by John Victor Witt (“Plaintiff”) (Doc. 1,
filed
February
23,
2015).
Plaintiff,
proceeding
pro
se,
is
presently confined at the Turbeville Correctional Institution in
Turbeville, South Carolina.
Because Plaintiff seeks leave to
proceed in forma pauperis (Doc. 2), 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).
Upon
review
of
the
complaint,
the
Court
concludes
that
Plaintiff has failed to present an actionable claim under 42 U.S.C.
§ 1983 and that dismissal of this case without prejudice is
warranted.
However, because it appears that Plaintiff may be
seeking habeas corpus relief, the Court will direct the Clerk of
Court to docket the instant § 1983 complaint (Doc. 1) in a habeas
corpus action pursuant to 28 U.S.C. § 2241.
I.
Legal Standards
A
federal
district
court
is
required
to
review
a
civil
complaint filed in forma pauperis and to dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915.
In essence, § 1915(e)(2)
is a screening process to be applied sua sponte and at any time
during the proceedings.
The mandatory language of 28 U.S.C. §
1915 applies to all proceedings in forma pauperis.
The section
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;
(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.
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or
28 U.S.C. § 1915(e)(2).
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).
Moreover, the Court must read
the plaintiff’s pro se allegations in a liberal fashion. Haines v.
Kerner, 404 U.S. 519 (1972).
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.
Dismissals under 28 U.S.C. § 1915(e)(2)(ii) for failure to
state a claim are governed by the same standard as Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Mitchell v. Farcass, 112
F.3d 1483, 1485 (11th Cir. 1997).
Under Rule 12(b)(6), a complaint
may be dismissed if the facts as pleaded do not state a claim to
relief that is plausible on its face. See Bell Atl. Corp v.
Twombly, 550 U.S. 544 (2007) (retiring the “no set of facts”
language previously used to describe the motion to dismiss standard
and determining that because the plaintiffs had not nudged their
“claims across the line from conceivable to plausible,” their
complaint must be dismissed for failure to state a claim).
A
complaint is also subject to dismissal under Rule 12(b)(6) “when
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its allegations, on their face, show that an affirmative defense
bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357
(11th Cir. 2003); Marsh v. Butler County, Ala., 268 F.3d 1014,
1022 (11th Cir. 2001).
II.
Complaint
Plaintiff is currently incarcerated in South Carolina (Doc.
1 at 1).
Although the facts as set forth in Plaintiff's complaint
are unclear, Plaintiff appears to argue that he has been denied a
speedy trial and denied due process of law in Florida because of
a detainer 1 that was filed against him by the Lee County Sheriff’s
Office.
Plaintiff asserts that the detainer is:
[E]ffecting [sic] my custody level in prison,
effecting/preventing me to be allowed to work
in a pre-release level 1 camp, preventing me
from paying $18,000 in restitution that I owe
and court fines. Also the Defendant (Stephen
B. Russell)/Attorney General is using this
tactics from keeping this case from going to
court now.
Which is not fair to the
Plaintiff, due to the fact his witnesses are
older in age and witnesses could die off, or
memories
could
fade
away
giving
the
prosecution an [sic] tactical advantage by
delaying this case and preventing it from
going forward. Also, I believe the solicitor
Stephen B. Russell is in conflict with one of
the victims of alleged suit.
1
A detainer is “a request filed by a criminal justice agency
with the institution in which a prisoner is incarcerated, asking
that the prisoner be held for the agency, or that the agency be
advised when the prisoner's release is imminent.” Fex v. Michigan,
507 U.S. 43, 44 (1993).
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(Doc. 1 at 5).
Plaintiff has attached to his complaint numerous
documents indicating that he has contacted various South Carolina
and Florida agencies in an attempt to have the detainer removed
(Doc. 1-1).
Plaintiff asks this court to order that the defendants “serve
this warrant on him, while he is at Turbeville Prison so that the
Plaintiff
can
be
given
a
fair
trial
and
also
if
there
is
restitution in Florida, it can be paid weekly, when this detainer
is removed.” (Doc. 1 at 7).
III. Discussion
A liberal reading of Plaintiff's complaint indicates that he
challenges
both
the
validity
and
the
effect
of
the
Florida
detainer. See Norris v. Georgia, 522 F.2d 1006, 1011 (4th Cir.
1975)
(recognizing
the
“fundamental
distinction”
that
exists
between an attack on the validity of a detainer on a speedy trial
ground and an attack on the effect of the detainer, with the latter
dealing
with
the
“adverse
impact
created
by
the
immediate
custodian's imposition of a special ‘form of custody’ on the
prisoner as a result of the filing of the detainer.”).
The Court
will consider each attack on the detainer separately.
A.
To
Validity of the Detainer
the
extent
Plaintiff
asserts
that
Florida
officials
violated his speedy trial rights or the Interstate Agreement on
Detainers Act by lodging a detainer against him, this Court notes
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that 28 U.S.C. § 2241, not 42 U.S.C. § 1983, provides the general
jurisdictional basis for his claims.
See Braden v. 30th Judicial
Cir. Ct., 410 U.S. 484 (1973).
The Court will not convert the instant § 1983 action to a
habeas action for two reasons. See Prather v. Norman, 901 F.2d 915
(11th Cir. 1990) (cautioning district courts to consider the effect
that treatment of an inmates’ civil rights complaints as petitions
for habeas corpus will have on the future validity of those
claims).
First, although Plaintiff has written letters to various
state entities (Doc. 1-1), it is unclear whether Plaintiff has
exhausted his state remedies. See Grant v. Hogan, 505 F.2d 1220,
1223 (3d Cir. 1974) (recognizing that when a habeas petitioner is
incarcerated in one state but challenges a detainer lodged by
another state on speedy trial grounds, “habeas corpus relief [is]
available
only
if
the
prisoner
[has]
exhausted
the
remedies
available to him in the indicting state when seeking his right to
a speedy trial on the underlying charges.”); Chappell v. Teague,
946 F.2d 900, at *1 (10th Cir. 1991) (“Petitioner must first seek
relief in state court before seeking habeas relief in federal
court.”). Next, Plaintiff's complaint names several defendants who
are not the proper respondents in a habeas action.
of
a
detainer,
confinement
acts
the
State
holding
as
agent
for
the
the
prisoner
demanding
In the case
in
State,
immediate
and
the
custodian state is presumably indifferent to the resolution of the
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prisoner's
attack
on
the
detainer.
Braden,
410
U.S.
at
499.
Therefore, the proper respondent in this case would be the Attorney
General of the State of Florida. 2
Consequently,
Plaintiff's
as
complaint
currently
does
not
presented
state
a
to
claim
this
under
Court,
§
2241.
Therefore, the Court will direct the Clerk to open a new civil
action, nature of suit 530, with the instant complaint (Doc. 1)
docketed as the § 2241 petition.
If Plaintiff wishes to proceed
with this action, he must file an amended 28 U.S.C. § 2241 petition
within twenty-one days from the date on this Order.
B.
Effect of the Detainer
To the extent Plaintiff seeks an injunction preventing South
Carolina prison officials from considering the existence of a
2
In Braden, the Supreme Court was presented with a question of
interstate detainer, an issue not specifically covered by 28 U.S.C.
§ 2241. The Court addressed the issue of whether a district court
in one state could have jurisdiction over a prisoner in custody in
another state where that prisoner challenged a detainer issued by
the first state. 410 U.S. at 495.
“In reaching its conclusion
that the prisoner could attack the interstate detainer in a
district court located within the state issuing the detainer,
though the prisoner was confined in another state, the Supreme
Court looked to the text of 28 U.S.C. § 2241(a).” Wadsworth v.
Johnson, 235 F.3d 959, 962 (5th Cir. 2000). The Supreme Court then
used traditional venue principles to reach its conclusion that it
could not assume that Congress intended to require a state to
defend its action in a distant state and to preclude resolution of
the dispute by a federal judge familiar with the laws and practices
of the first state. Id. Accordingly, although Plaintiff is “in
custody” in South Carolina, venue on a § 2241 habeas petition is
proper in Florida.
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detainer when determining his eligibility for a prison job, such
a claim is properly brought under § 1983. See Preiser v. Rodriguez,
411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper remedy
for a state prisoner who is making a constitutional challenge to
the conditions of his prison life, but not to the fact or length
of his custody.”).
However, the instant complaint does not name
any South Carolina defendant.
Moreover, because any § 1983 cause
of action involves conduct that is presently occurring solely in
South Carolina, venue is not proper in this Court. See 28 U.S.C.
§ 1391(b).
Accordingly, any claims challenging the effect of the
detainer on Plaintiff's South Carolina incarceration are dismissed
without prejudice to Plaintiff filing a new 42 U.S.C. § 1983
complaint in the South Carolina district court. 3
ACCORDINGLY, it is hereby ORDERED:
1.
Plaintiff's 42 U.S.C. § 1983 complaint (Doc. 1) is
dismissed without prejudice.
3
Under 28 U.S.C. § 1406, the district court of a district
where venue is improper “shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in which
it could have been brought.” 28 U.S.C. § 1406(a) (emphasis added).
Because Plaintiff has named no defendants in South Carolina,
transferring the case would not serve the interest of justice
because doing so would be futile. Moreover, there is no indication
that Plaintiff's claim would be time-barred if refiled in the
proper forum. See Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962)
(noting that transferring a case to another district is in the
interest of justice when dismissal would result in the claim being
time-barred on refiling in the proper forum).
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2.
The Clerk of Court is directed to terminate any pending
motions, enter judgment accordingly, and close this case.
3.
The Clerk is further directed to: (1) open a new civil
action, nature of suit 530, and docket the complaint (Doc. 1) as
a § 2241 habeas petition; (2) docket a copy of this order as docket
entry two of the new case; and (3) send Plaintiff a 28 U.S.C.
habeas corpus form with the new case number.
4.
Within TWENTY-ONE (21) DAYS from the date on this Order,
Plaintiff must file an amended petition on the form if he wishes
to proceed in a new action.
Failure to do so within the time
allotted will result in the dismissal of the new action without
further notice.
DONE and ORDERED in Fort Myers, Florida on this
of February, 2015.
SA: OrlP-4
Copies: John Victor Witt
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27th
day
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