Jordan v. McCabe et al

Filing 6

ORDER adopting 4 --REPORT AND RECOMMENDATIONS; denying 2 --motion for leave to proceed in forma pauperis; dismissing the action; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 5/12/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES E. JORDAN,
Plaintiff,
v.

CASE NO. 8:17-cv-707-T-23TGW

BERNIE MCCABE, et al.,
Defendants.
____________________________________/
ORDER
Convicted in state court of robbery and violating probation, James Jordan
sues (Doc. 1) under Section 1983 the State Attorney for the Sixth Judicial Circuit,
several police officers, and the “victim” of Jordan’s crime. Jordan alleges a violation
of the Fourth, Fifth, Eighth, and Fourteenth Amendments and requests “immediate
emergency release” from the state prison in which Jordan resides. (Doc. 1 at 11)
In a thorough report, Magistrate Judge Wilson recommends (Doc. 4) denying the
motion (Doc. 2) for leave to proceed in forma pauperis and recommends dismissing
the action for several reasons. More than fourteen days passed, and Jordan proffers
no objection to the report and recommendation.
As Magistrate Judge Wilson explains, an inmate cannot invoke Section 1983
to challenge a conviction and consequent incarceration. (Doc. 4 at 3) Rather, the
inmate’s “sole federal remedy is a writ of habeas corpus.” (Doc. 4 at 3 (citing Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973)) Jordan unsuccessfully exhausted the “sole

federal remedy.” In 2012 the Middle District of Florida denied Jordan’s
application for the writ of habeas corpus, and the Eleventh Circuit denied Jordan’s
request for a certificate of appealability. Case no. 8:12-cv-1282-JSM-AEP. Also,
Magistrate Judge Wilson correctly states that Jordan cannot recover damages
because Heck v. Humphrey, 512 U.S. 477 (1994), permits the recovery of damages
for an allegedly unconstitutional conviction only if the conviction is overturned. No
court overturned Jordan’s conviction. Finally, as Magistrate Judge Wilson explains,
Florida’s four-year limitation bars Jordan’s suing in 2017 for a 2008 conviction.
Because amending the complaint is futile, Magistrate Judge Wilson recommends
dismissing the action. The report and recommendation (Doc. 4) is ADOPTED, the
motion (Doc. 2) for leave to proceed in forma pauperis is DENIED, and the action is
DISMISSED. The clerk is directed to close the case.
ORDERED in Tampa, Florida, on May 12, 2017.

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