Barber v. The Department of Children and Families et al

Filing 7

ORDER OF DISMISSAL dismissing 1 Complaint. The Clerk shall provide Plaintiff with the appropriate forms for filing a habeas corpus action, enter judgment accordingly, and close this case. Signed by Judge John E. Steele on 5/21/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHARLES JUNIOR BARBER,
Plaintiff,
v.

Case No:

2:18-cv-217-FtM-29MRM

THE DEPARTMENT OF CHILDREN
AND FAMILIES, in re of
involuntary civil commitment
and KRISTEN KANNER,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court on initial review of the
file.

Plaintiff, who is civilly committed to the Florida Civil

Commitment Center, initiated this action by filing a pro se civil
rights complaint form (Doc. #1) on April 3, 2018. Plaintiff seeks
leave to proceed in forma pauperis (Doc. #2).
Despite
remains

Plaintiff’s

subject

to

1915(e)(2)(B)(i)-(iii). 1

1The

non-prisoner

initial

review

status,
under

the
28

Complaint
U.S.C.

§

Pursuant to 28 U.S.C. § 1915, the Court

Court recognizes that certain portions of the Prison
Litigation Reform Act are not applicable to Plaintiff as a civil
detainee. Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).
The United States Court of Appeals for the Eleventh Circuit
previously found that a district court did not error by dismissing
a Complaint filed by a civil detainee for failure to state a claim
under the in forma pauperis statute, 28 U.S.C. Section 1915
(e)(2)(B).
Id. at 1260.
Other Courts have also found that
section 1915(e)(2)(B) is not limited to prisoners, but applies to
all persons proceeding in forma pauperis. See Calhoun v. Stahl,

is required to review Plaintiff’s Complaint to determine whether
the complaint is frivolous, malicious or fails to state a claim.
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.

The

Court,

nonetheless,

Plaintiff’s pro se allegations in a liberal fashion.

must

read

Hughes v.

Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).
Plaintiff claims that his “liberty interest, rights” and
“constitutional

rights”

“have

been

violated.”

Doc.

1

at

4.

According to the Complaint, Plaintiff was arrested on November 2,
2012 in Arkansas for “sexual assault” and “failure to register as
a sex offender.”

Id. at 5.

Plaintiff claims he was not prosecuted

in Arkansas but “was remanded to Florida as a VOP” and “admitted
to the Florida Civil Commitment Center . . . as a detainee” and
eventually “committed through the 18th Circuit Court as a sexually
violent

predator.”

Id.

Plaintiff

avers

that

he

has

been

“incarcerated” at the FCCC for 34 months but has not consented to
treatment.

Id.

As relief, Plaintiff seeks $110.00 a day in a

damages and for the “Court to immediately discharge [him] from the
custody of D.C.F.”

Id. at 7.

The Court will dismiss the instant action because it appears
Plaintiff should file a habeas corpus petition, rather than a civil

254 F.3d 845 (9th Cir. 2001).

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rights action.

In particular, Plaintiff is challenging the fact

or duration of his confinement at the FCCC, and seeks release from
custody.

“[H]abeas corpus is the exclusive remedy for a . . .

prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release.”

Bradley v. Pryor, 305

F.3d 1287, (11th Cir. 2002) (quoting Preiser v. Rodriquez, 411
U.S. 475 (1973)); See also Medberry v. Crosby, 351 F.3d 1049 (11th
Cir. 2003) (discussing differences between § 1983 and § 2241, §
2254).

To the extent that Plaintiff contends that he is being

illegally held at the FCCC, he may file an appropriate action on
the approved habeas corpus form for persons filing an action
pursuant to 28 U.S.C. § 2241 or § 2254.
ACCORDINGLY, it is hereby
ORDERED:
1.
2.

The Complaint (Doc. #1) is dismissed.
The Clerk of Court shall provide Plaintiff with the

appropriate forms for filing a habeas corpus action, terminate any
pending motions, enter judgment accordingly, and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2018.

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21st

day

SA: FTMP-1
Copies:
Counsel of Record

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