Stemen v. Rushing

Filing 8

ORDER dismissing the complaint without prejudice; directing the clerk to ENTER JUDGMENT of dismissal against Stemen and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/19/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TIMOTHY W. STEMEN,
Plaintiff,
v.

CASE NO. 8:18-cv-162-T-23MAP

DETECTIVE WILLIAM RUSHING,
Defendant.
/

ORDER
Stemen’s amended complaint (Doc. 6) alleges that Detective Rushing violated
his civil rights by surreptitiously recording his interviews and seizing his cellular
telephone without a warrant. Stemen paid the full $400 filing fee. Even though
Stemen is not proceeding in forma pauperis, a district court is required to “review . . .
a complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity . . . [and] the court shall . . .
dismiss the complaint, or any portion of the complaint, if the complaint (1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A. Although the amended complaint is entitled to a generous
interpretation, Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), this pro se amended
complaint lacks merit under this standard.

Stemen alleges that on October 9, 2016, Detective Rushing both questioned
him inside his home, during which the detective recorded their conversation without
Stemen’s knowledge, and seized his cellular telephone without a warrant. Stemen
states that he was transported to the Winter Haven Hospital and held under the
“Baker Act.” Stemen represents that three days later and while in the psychological
ward of the hospital, Detective Rushing again questioned him, stopped the
questioning to read Stemen his Miranda rights, and resumed the questioning, which
he again recorded without Stemen’s advance knowledge. Stemen asserts that he
neither positively knew that the conversations were recorded nor knew that the
conversations were used as evidence against him until he received his copy of
discovery after he reached prison. Stemen fails to state a claim that he can pursue in
a civil rights action.
Stemen’s allegations challenge the validity of his conviction because he
contests the lawfulness of the means Detective Rushing used to acquire the evidence
that was used to convict him. Under Preiser v. Rodriquez, 411 U.S. 475, 500 (1973), if
a state prisoner challenges the fact or duration of confinement, a writ of habeas
corpus is the exclusive federal remedy. Additionally, Heck v. Humphrey, 512 U.S.
477, 486–87 (1994), precludes Stemen from challenging the validity of either the
conviction or the sentence by a civil rights action instead of an application for the
writ of habeas corpus.
We hold that, in order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
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conviction or sentence invalid, 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. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider 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.

Heck requires dismissal of a civil rights complaint if a ruling in the plaintiff’s favor
questions the validity of the conviction or sentence. Stemen has no Section 1983
claim unless he prevails on habeas corpus. “[A] § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.” Heck v. Humphrey, 512 U.S. at 489–90.
Consequently, Stemen fails to state a claim for relief that he can pursue in a
civil rights action because the complaint fails to allege that the conviction was
“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 . . . .” Heck v. Humphrey, 512 U.S. at 487.
Stemen would gain no benefit from construing the civil rights action as a
habeas action because his challenge to the validity of his conviction is still pending in

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state court.* An applicant must present each claim to the state courts before raising
the claim in federal court. “[E]xhaustion of state remedies requires that petitioners
‘fairly presen[t]’ federal claims to the state courts in order to give the State the
‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)). Accord Rose v. Lundy, 455 U.S. 509, 518S19 (1982) (“A rigorously
enforced total exhaustion rule will encourage state prisoners to seek full relief first
from the state courts, thus giving those courts the first opportunity to review all
claims of constitutional error.”), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir.
1995) (“[T]he applicant must have fairly apprised the highest court of his state with
the appropriate jurisdiction of the federal rights which allegedly were violated.”).
Additionally, to avoid a procedural default, a petitioner must present each claim to
the state courts in the procedurally correct manner. Upshaw v. Singletary, 70 F.3d at
579 (“In Florida, in non-death penalty cases, the applicant must have apprised a
district court of appeal” of the federal rights that were allegedly violated.).
As a consequence, Stemen fails to state a claim upon which relief can be
granted in the present action. Amendment of the action would prove futile because

*

Stemen’s appeal from the denial of relief in his motion under Rule 3.800, Florida Rules of
Criminal Procedure, to correct an illegal sentence is pending in the Second District Court of Appeal,
No. 2D17-3453. The district court judicially notices (1) the online docket for the Second District
Court of Appeal, which docket is accessible by searching Stemen’s name at “http://199.242.69.70/
pls/ds/ds_docket_search” and (2) the online docket for the Circuit Court for Polk County, Florida,
which docket is accessible by searching Stemen’s name at “https://pro.polkcountyclerk.net/PRO/
PublicSearch/PublicSearch.”
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Stemen can state no valid Section 1983 claim for relief. See Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001) (“A district court need not, however, allow an
amendment (1) where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the opposing party; or
(3) where amendment would be futile.”).
Accordingly, the civil rights complaint (Doc. 1) is DISMISSED WITHOUT
PREJUDICE to Stemen’s re-filing a Section 1983 complaint if he succeeds in having
the conviction vacated. The clerk must enter a judgment of dismissal against Stemen
and close this case.
ORDERED in Tampa, Florida, on March 19, 2018.

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