McAffee v. Dorr et al
Filing
13
ORDER: 1. Plaintiff's Objections 10 to the Report and Recommendation are overruled. 2. The Report and Recommendation of the Magistrate Judge 9 is adopted, confirmed, and approved, in all respects, and is made a part of this Order for all purposes, including appellate review. 3. Plaintiff's request to proceed in forma pauperis 2 is DENIED. 4. Plaintiff's Complaint 1 is DISMISSED. 5. The Clerk is directed to terminate all pending motions and close this case. Signed by Judge Charlene Edwards Honeywell on 8/4/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JERRY MCAFFEE, JR.,
Plaintiff,
v.
Case No: 8:16-cv-3484-T-36MAP
RANDALL DORR, JOSEPH CZOP and
GAVIN J. MACCUBBIN,
Defendants.
___________________________________/
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge
Mark A. Pizzo (Doc. 9). In the Report and Recommendation, Magistrate Judge Pizzo recommends
that the Court:
(1) deny Plaintiff’s request to proceed in forma pauperis (Doc. 2); and
(2) dismiss Plaintiff’s Complaint (Doc. 1).
Plaintiff Jerry McAffee, Jr. filed Objections to the Report and Recommendation (Doc. 10). Upon
consideration, the Court will overrule the objections and approve the Magistrate Judge’s Report
and Recommendation.
I.
BACKGROUND
Plaintiff, who is proceeding pro se, filed this civil rights action against three Pinellas
County Sheriff’s Office deputies. Doc. 1. Plaintiff alleges that he was falsely arrested for domestic
battery in violation of his Constitutional rights and that his unconstitutional arrest caused the
revocation of his parole release and reincarceration.1 See Doc. 1. Plaintiff, who remains
incarcerated, seeks an injunction (presumably to end his incarceration), compensatory damage (for
loss of certain property), punitive damages (for loss of liberty, custody of his daughter, and pain
and suffering). Id. at p.7-8.
Thereafter, Plaintiff filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. §
1915 to which Judge Pizzo issued a Report and Recommendation. Docs. 2, 9. Judge Pizzo
recommended denial of Plaintiff’s request to proceed in forma pauperis and dismissal of his
Complaint because: (1) Plaintiff’s Complaint is barred by Heck; (2) Plaintiff’s Complaint is
baseless since lack of probable cause has not been shown; and (3) compensatory and punitive
damages are foreclosed by the provisions of 42 U.S.C. §1997e. Plaintiff has now filed objections.
Doc. 10. In his objections, Plaintiff argues that Judge Pizzo: (1) improperly screened the case; (2)
prematurely recommended dismissal thereby denying Plaintiff an opportunity to respond to the
motion to dismiss; (3) improperly applied the Prison Litigation Reform Act (PLRA) to this case;
(4) improperly applied Heck to this case; (5) misconstrued Plaintiff’s Complaint thereby applying
the wrong case law;2 and (6) mistakenly found probable cause to arrest. Doc. 10.
II.
STANDARD OF REVIEW
When a party makes a timely and specific objection to a Magistrate Judge’s Report and
Recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507, 512 (11th
1
At the time of his arrest, Plaintiff was on parole for attempted murder. Following his arrest, the parole board
revoked Plaintiff’s parole and remanded him to the custody of the Department of Corrections where he is currently
serving the balance of his 25-year sentence for attempted murder.
2
Harden v. Pataki, 320 F.3d 1289 (11th Cir. 2003) and Cobb v. Florida, 293 Fed. App’x 708,709 (11th Cir. 2008).
2
Cir. 1990). With regard to those portions of the Report and Recommendation not objected to, the
district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc.,
817 F. Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify in
whole or in part, the Report and Recommendation of the Magistrate Judge. Fed. R. Civ. P. 72.
The district judge may also receive further evidence or recommit the matter to the Magistrate Judge
with further instructions. Id.
III.
DISCUSSION
In his first objection, Plaintiff argues that Magistrate Judge Pizzo should not have screened
his case because this Court previously “screened” his Complaint and found it meritorious when it
issued the “Related Case Order and Track One Notice.” See Doc. 3. Plaintiff’s objection
demonstrates a misunderstanding of case management procedure in this Court. In pertinent part
Rule 3.05 of the Local Rules for the Middle District of Florida (Case Management) states the
following:
(a) As soon as practicable after the filing of any civil action, the Clerk shall designate the case
for future management on one of three tracks. The Clerk will notify the Plaintiff of
such designation and the Plaintiff must then serve that notice upon all other parties….
(b) Cases shall be designated by the Clerk to their appropriate tracks as follows:
(1) The following categories of proceedings are Track One Cases:
(C) an action brought without counsel by a person in custody of
the United States, a state, or a state subdivision…
On December 28, 2016, this Court issued an Order and Notice (Doc. 3.) which stated the following:
It is hereby ORDERED that, no later than fourteen days from the date of this Order,
counsel and any pro se party shall comply with Local Rule 1.04(d), and shall file
and serve a certification as to whether the instant action should be designated as a
similar or successive case pursuant to Local Rule 1.04(a) or (b). The parties shall
utilize the attached form NOTICE OF PENDENCY OF OTHER ACTIONS. It is
FURTHER ORDERED that, in accordance with Local Rule 3.05, this action is
designated a Track One case. All parties must comply with the requirements
established in Local Rule 3.05 for Track One cases.
3
Nothing in the above mentioned Order indicates that this Court screened and/or previously
found merit in the instant case. In fact, the “Order and Notice” does not indicate that the initial
filing was screened for anything more than the determination of which Track was appropriate.
Doc. 3. Indeed, it is readily apparent that the Court, upon receipt of Plaintiff’s filing, followed the
proper procedure. See Local Rule 3.05. As such, Plaintiff’s conclusion that the Court previously
“screened his case” and found it “meritorious” is incorrect. Plaintiff’s first objection is overruled.
In his second objection, Plaintiff maintains that by recommending dismissal, Magistrate
Judge Pizzo deprived him of the opportunity to respond to the motion to dismiss. This objection is
without merit. When Plaintiff filed an application to proceed in forma pauperis (Doc. 2), the Court
was required to screen and dismiss the case if it determined that the action was frivolous, malicious,
failed to state a claim upon which relief can be granted, or sought monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B) (i)-(iii). “A claim is
frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001) (citing Battle v. Central State Hospital, 898 F.2d 126,129 (11th Cir. 1990)).
Moreover, an action is frivolous when it presents legal theories that are “indisputably meritless,”
or when the claims rely on factual allegations which are “clearly baseless.” Neitzke v. Williams,
490 U.S. 319, 328 (1989).
Here, a review of Plaintiff’s factual allegations revealed that this case could not be brought
under 42 U.S.C. § 1983. The Supreme Court has held that a state prisoner’s claim for damages is
not cognizable under 42 U.S.C. § 1983 if a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence. See Heck v. Humphrey, 512 U.S. 477, 486-487,
114 S. Ct. 2364, 2372-73, 129 L.Ed.2d 383 (1994). Since Plaintiff’s claims implicate the validity
4
of his conviction, Magistrate Judge Pizzo properly determined that dismissal was appropriate. See
28 U.S.C. § 1915(e)(2)(B) (i)-(iii). Thus, Plaintiff’s second objection is also overruled.
In his third objection, Plaintiff contends that the Prison Litigation Reform Act (PLRA) does
not apply to his case. Plaintiff’s objection is without merit. Congress enacted the Prison Litigation
Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq., in 1996
in the wake of a sharp rise in prisoner litigation in the federal courts. See, e.g., Alexander v. Hawk,
159 F.3d 1321, 1324-1325 ( 11th Cir. 1998) (citing statistics). The PLRA places substantial
restrictions on the judicial relief that prisoners can seek, with the goal of “reduc[ing] the number
of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive amounts of
free time with which to pursue their complaints.” Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th
Cir. 2011) (quoting Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)). Indeed, the Eleventh
Circuit has held that 42 U.S.C. § 1997e(e) applies to all federal civil actions, including
constitutional claims brought under 42 U.S. C. § 1983. See Harris v. Garner (Harris II), 216 F.3d
970, 984-85 (11th Cir. 2000) (en banc) (finding 42 U.S.C. § 1997e(e) applies to all federal civil
actions). And, 42 U.S.C. § 1997e(e), in pertinent part, states the following:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury…
See also Brooks v. Warden, 800 F.3d 1295, 1298 (11th Cir. 2015) (“Because [plaintiff] has not
alleged any physical injury resulting from his hospital stay, under the [PLRA], he cannot recover
compensatory or punitive damages” for his Eighth Amendment claim).
Here, since Plaintiff is a prisoner seeking relief under 42 U.S.C. § 1983, the PLRA applies
to the instant case. Plaintiff’s third objection that the Prison Litigation Reform Act (PLRA) does
not apply to his case is, therefore, overruled. Moreover, Plaintiff’s compensatory and punitive
5
damages claims for “pain and suffering from stress” is insufficient to state a claim under § 1983.
Indeed, Plaintiff has failed to allege even de minimus physical injury. And as a result, to the extent
that Plaintiff seeks compensatory and punitive damages without physical injury, his Complaint is
due to be dismissed.
In his fourth and fifth objections, Plaintiff maintains that the Heck, Cobb and Harden cases
do not apply to his case. Plaintiff’s objections are without merit. In Heck v. Humphrey, 512 U.S.
477, 486-487, 114 S. Ct. 2364, 2372-73, 129 L.Ed.2d 383 (1994), the Supreme Court “held that a
state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor
of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the
prisoner can demonstrate that the conviction or sentence has previously been invalidated.”
Edwards v. Balisok, 520 U.S. 641, 643, 117 S. Ct. 1584, 1586, 137 L.Ed.2d 906 (1997)(applying
Heck rule to disciplinary hearing that resulted in deprivation of good time credits). This favorabletermination requirement has been extended to revocation of parole hearings. See Green v. McGillJohnston, No. 16-11172, ___Fed. App’x___, 2017 WL 1371387, at *1 (11th Cir. Apr. 17, 2017)
(per curiam) (affirming that Heck applies to parole revocation challenges);3 Cobb v. Florida, 293
Fed. App’x 708, 709 (11th Cir. 2008) (affirming dismissal because the necessary implication of a
grant of relief would be that Plaintiff’s probation revocation is invalid); Harden v. Pataki, 320 F.3d
1289, 1295-1296 (11th Cir. 2003)4(holding that Heck’s favorable-termination requirement “does
not bar purely procedural claims brought under § 1983.”).
3
See also Henderson v. Davis, 467 Fed. App’x 829, 830 (11th Cir. 2012) (noting that monetary damages were
directly attributable to the revocation of his conditional release and re-incarceration and holding that “Heck bars
these claims.”).
4
In other words “extradition procedures, even if they violate federal rights, have no bearing, direct or implied, on
the underlying guilt or innocence of the person extradited.” Id. at 1297.
6
Plaintiff contends that the wrong case law was applied to his case. Plaintiff’s objections
are without merit. Plaintiff alleges that the Defendant deputies “knowingly and intentionally
falsely arrested” him for domestic battery and that they “maliciously violated his conditional
release.” In addition, Plaintiff submits that the Defendant deputies “knowingly and intentionally”
violated procedures which resulted in violations of his constitutional rights.5 However, and
despite his assertion to the contrary, dismissal under Heck is appropriate because, if Plaintiff
prevailed, it would necessarily implicate the validity of his conditional release conviction. As
Magistrate Judge Pizzo correctly noted, Plaintiff’s allegations fundamentally challenge the
revocation of his conditional release and seek his freedom. And since Plaintiff’s allegations
would implicate his conviction, his Complaint is barred under Heck. Plaintiff’s fourth and fifth
objections are also overruled.
Plaintiff’s sixth objection regarding probable cause is also without merit. Plaintiff
contends that he was falsely arrested. A warrantless arrest without probable cause violates the
Constitution and provides a basis for a section 1983 claim. See Marx v. Gumbinner, 905 F.2d
1503, 1505 (11th Cir. 1990). “The existence of probable cause at the time of arrest, however,
constitutes an absolute bar to a section 1983 action for false arrest.” Id. at 1505-06. Probable
cause to arrest exists when an arrest is objectively reasonable based on the totality of the
circumstances. See Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). “This standard is met
when ‘the facts and circumstances within the officer’s knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe, under the
5
Plaintiff alleges that the Defendants violated his Fourth, Fifth, Eighth and Fourteenth Amendments.
7
circumstances shown, that the suspect has committed, is committing, or is about to commit an
offense.’ ” Id. (quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)).
Here, Plaintiff’s Complaint and attached exhibits, demonstrate that the arresting officers
acted prudently in conducting a thorough and reasonable investigation before placing Plaintiff
under arrest for spousal battery. Plaintiff concedes that his wife told the arresting deputies that he
had hit her.6 The facts and circumstances within the arresting deputies’ knowledge, and of which
the arresting officers had reasonably trustworthy information (including their own observations at
the scene), would have caused prudent officers to believe that the Plaintiff had committed spousal
battery. Hence, Plaintiff’s claims for “unconstitutional imprisonment” (Doc. 10) are dismissed for
failure to show a lack of probable cause.
In sum, after careful consideration, the Court agrees with Magistrate Judge Pizzo and finds
that Plaintiff”s Complaint is barred by Heck, fails to state a claim and, to the extent he seeks
compensatory and punitive damages, is barred for failure to allege even de minimus physical
injury. In conclusion, all of Plaintiff’s objections are overruled and his Complaint will be dismissed
for the reason stated in this Order and in the Magistrate Judge’s Report and Recommendation.
Because leave to amend would be futile, Plaintiff will not be granted leave to amend his Complaint.
IV.
CONCLUSION
For the reasons stated above, it is hereby ORDERED:
1. Plaintiff’s Objections (Doc. 10) to the Report and Recommendation are overruled.
2. The Report and Recommendation of the Magistrate Judge (Doc. 9) is adopted,
confirmed, and approved, in all respects, and is made a part of this Order for all
purposes, including appellate review.
6
See Doc. 1; Ex. E pg. 14 (Officer report); and pg. 16 (Victim-Witness statement).
8
3. Plaintiff’s request to proceed in forma pauperis (Doc. 2) is DENIED.
4. Plaintiff’s Complaint (Doc. 1) is DISMISSED.
5. The Clerk is directed to terminate all pending motions and close this case.
DONE AND ORDERED in Tampa, Florida on August 4, 2017.
Copies to:
Counsel of Record and Unrepresented Parties, if any
Magistrate Judge Mark A. Pizzo
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