Powell v. State of Florida et al

Filing 15

ORDER OF DISMISSAL directing the Clerk to enter judgment in favor of defendants and to close the case. Signed by Judge John E. Steele on 7/19/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JIMMIE POWELL,
Plaintiff,
v.

Case No:

2:17-cv-331-FtM-99MRM

STATE OF FLORIDA, FLORIDA
DEPARTENT OF CORRECTIONS,
GEO GROUP, and MOORE HAVEN
CORRECTIONAL FACILITY,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court upon Plaintiff’s complaint
(Doc. 1) in which he alleges that he is being unconstitutionally
held by the Florida Department of Corrections and seeks both
release from incarceration and damages pursuant to 42 U.S.C. §
1983.

Because Plaintiff seeks leave to proceed in forma pauperis

(Doc. 4), the Court must review his complaint pursuant to the
provisions of 28 U.S.C. § 1915(e).
Upon review of Plaintiff’s complaint and attachments and the
applicable law, Plaintiff’s case is dismissed for failure to state
a

claim

upon

which

relief

can

be

granted.

28

U.S.C.

§§

1915(e)(2)(B)(ii).
I.

Complaint

Plaintiff asserts that he is being illegally held in the
custody

of

the

Florida

Department

of

Corrections

(Doc.

1).

Specifically, he urges that he was sentenced by the State of
Florida to fifteen years in prison and that his term expired on
June 18, 2017.
the

sentence

Id. at 4.
and

He argues that he “does not challenge

judgment

negotiated plea agreement.”

imposed,

which

Id. at 2.

was

based

upon

a

Rather, he urges that the

Florida Department of Corrections has incorrectly calculated his
end-of-sentence date as October 5, 2017.
Plaintiff

asks

this

Court

to

Id. at 3.

force

the

Department

of

Corrections to verify that his end-of-sentence date is June 18,
2017 and to award $137 per day and punitive damages for each day
after June 18, 2017 spent in prison (Doc. 1 at 4).
II.
A

federal

district

Legal Standards
court

is

required

to

review

a

civil

complaint filed in forma pauperis and 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.

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;

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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).
In the case of a pro se action, the Court should construe the
complaint

more

liberally

than

it

would

pleadings

lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

drafted

by

Nevertheless, pro

se litigants are not exempt from complying with the requirements
of the Federal Rules of Civil Procedure, including Rule 8(a)(2)’s
pleading standard. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (stating that pro se litigants are “subject to the relevant
law and rules of court, including the Federal Rules of Civil
Procedure”).

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III. Analysis
Title 42 U.S.C. § 1983 imposes liability on one who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws[.]” 42 U.S.C.
§ 1983.

To articulate a claim under § 1983, a plaintiff must

allege that: (1) a defendant deprived him of a right secured under
the 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).
Plaintiff does not identify the specific rights secured under
the

Constitution

violated.

or

federal

law

that

he

believes

have

been

Therefore, the Court will construe his complaint as

raising a violation of the Due Process Clause of the Fourteenth
Amendment

as

a

result

of

the

allegedly

incorrect

sentence.

However, the complaint fails to state a valid due process claim
for the following reasons.
a.

A prisoner cannot seek release from confinement under 42
U.S.C. § 1983

Plaintiff

asks

this

Court

to

compel

the

defendants

recalculate his sentence and, presumably, release him.

to

However,

“if the relief sought by the inmate would either invalidate his
conviction or sentence or change the nature or duration of his
sentence, the inmate’s claim must be raised in a § 2254 habeas
petition, not a § 1983 civil rights action.” Boyd v. Warden, Holman

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Correctional Facility, 856 F.3d 853, 865 (11th Cir. 2017) (citing
and quoting Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.
2006)); see also Presier v. Rodriguez, 411 U.S. 475, 500 (1973)
(“[W]hen a state prisoner is challenging the very fact or duration
of his physical imprisonment [under § 1983], and the relief he
seeks is a determination that he is entitled to immediate release
or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.”)).
b.

As

Petitioner’s claims for monetary damages are barred by
Heck v. Humphrey
noted,

Plaintiff’s

request

for

release

attacks

the

fundamental legality of his sentence, and therefore, provides no
basis for relief in a § 1983 action.

Plaintiff fares no better

in his request for monetary damages.

In Heck v. Humphrey, 512

U.S. 477 (1994), the United States Supreme Court held that:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment,
or for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, (footnote omitted), a § 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, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or
sentence that has not been so invalidated is
not cognizable under § 1983.

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Id. at 486–87.

Under Heck, the relevant inquiry is “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 already been invalidated.”
Id.

at

487.

The

requirement

under

collateral

attack

purpose

Heck
on

is

of
to

state

the

“favorable

“limit

court

the

termination”

opportunities

convictions

because

for
such

collateral attacks undermine the finality of criminal proceedings
and may create conflicting resolutions of issues.”

Abella v.

Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
Because Plaintiff challenges the constitutionality of his
period of incarceration, a judgment in his favor would necessarily
imply the invalidity of his incarceration.

It is clear from the

face of the complaint that the sentence and resulting confinement
about which Plaintiff complains have not been invalidated in an
appropriate

proceeding.

Thus,

Plaintiff's

cognizable under 42 U.S.C. § 1983.

claims

are

not

See, e.g., Christy v. Sheriff

of Palm Beach Cnty., Fla., 288 F. App'x 658, 666 (11th Cir. 2008)
(holding that the district court was correct to dismiss claims
under Heck because if plaintiff prevailed on the claims, it would
necessarily imply the invalidity of his conviction).
Because

Plaintiff’s

sentence

has

not

been

“reversed,

expunged, invalidated, or impugned by the grant of a writ of habeas

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corpus[,]” his claims are barred by Heck, and his complaint is
therefore due to be dismissed.
c.

512 U.S. at 483-89.

Plaintiff is not being held past the expiration of his
sentence

Finally, the Court will not construe Plaintiff’s complaint as
a 28 U.S.C. § 2254 petition for writ of habeas corpus, because
doing so would be futile.

Plaintiff attached his plea agreement

and judgment to his complaint and references them in the body of
his complaint (Doc. 1-1).

On December 17, 2003, Plaintiff signed

a negotiated plea agreement requiring him to spend fifteen years
in prison with credit for 433 days served in jail.

Id. at 1-2.

In his judgment, it is noted that, as a prison releasee reoffender,
Plaintiff is required to serve one hundred percent of his sentence.
Id. at 5.

The judgment also provided Plaintiff 434 days’ credit

(as opposed to the 433 days in the plea agreement) for the time
Plaintiff spent incarcerated before imposition of his sentence.
Accordingly, Plaintiff’s sentence is scheduled to run until
December 17, 2018, minus 434 days, providing a release date of
October 9, 2017.

That Plaintiff now believes he should have been

awarded (or negotiated) additional jail credit at sentencing is an
issue that he was require to timely raise on habeas corpus review.
See discussion supra.

Plaintiff already filed a 28 U.S.C. § 2254

petition in the Northern District of Florida in 2008, and the
petition was summarily dismissed as untimely filed.

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See Case NDFL

Case No. 4:08-cv-532-MP-WCS.

Any new § 2254 petition would suffer

from the same defect—rendering futile any attempt for Petitioner
to litigate this issue a second time.

See Rule 4 of the Rules

Governing Habeas Corpus Cases under Section 2254 (“If it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition[.]”).
IV.

Conclusion

Plaintiff cannot receive the relief he seeks in a 42 U.S.C.
§

1983

action.

Moreover,

Plaintiff’s

sentence

has

not

been

overturned, and as a result, his Heck-barred claims are subject to
dismissal.

The Court will not construe the instant petition as a

28 U.S.C. § 2254 petition for writ of habeas corpus because doing
so would not provide any relief.

With no remaining claims, the

Clerk of Court is directed to terminate any pending motions, close
this case, and enter judgment in favor of the defendants.
DONE and ORDERED in Fort Myers, Florida on this
of July, 2017.

SA: OrlP-4
Copies: Jimmie Powell

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19th

day