Jimenez v. Allweiss et al

Filing 19

ORDER dismissing 1 --complaint; denying as moot all pending motions; directing the clerk to ENTER JUDGMENT of dismissal against Jimenez and to CLOSE the case. Signed by Judge Steven D. Merryday on 8/16/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DAVID JIMENEZ,
Plaintiff,
v.

CASE NO. 8:18-cv-928-T-23AEP

ROBIN LYNN ALLWEISS, et al.,
Defendants.
/

ORDER
Jimenez’s complaint alleges that the defendants violated his civil rights during
state criminal proceedings. Jimenez paid the full $400 filing fee. Even though
Jimenez 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 complaint is entitled to a generous interpretation,
Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), this pro se complaint lacks merit
under this standard.

This action was initially dismissed under 28 U.S.C. § 1915(g) because
Jimenez has filed at least three earlier civil rights action that were dismissed as either
frivolous, malicious, or for failing to state a claim for relief. (Doc. 5) The order was
vacated and the action re-opened when the clerk advised that Jimenez had paid the
full filing fee. (Doc. 7)
Jimenez is imprisoned for fifteen years based on state convictions for
(1) fraudulent use of personal identification and (2) fraudulent use of identification
that involved ten or more people and $5000 or more of loss. Jimenez sues three
prosecutors, one defense attorney, and two detectives,1 and he requests both actual
and punitive damages.
Attorneys:
In Jimenez v. McCabe, 8:11-cv-1749-T-23AEP (Doc. 9), Jimenez sued one of
the prosecutors and one of the defense attorneys that he sues in the present action.
In that earlier action Jimenez was advised both that the prosecutor is entitled to
absolute immunity from monetary damages for acts undertaken within the scope of
a prosecutorial duty and that a defense attorney (even a public defender) is not a state
actor when performing a lawyer’s traditional function. Jimenez received a similar
notice about prosecutorial immunity in Jimenez v. McCabe, 8:13-cv-439-T-23AEP
(Doc. 19).

1

In a supplemental paper, Jimenez added his ex-wife, Elizabeth Gonzales Franco, as a
defendant and later withdrew her as a defendant. (Docs. 13 and 15)
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Police Officers:
To the extent that Jimenez sues the police officers based on their pre-trial and
trial testimony, a witness in a criminal proceeding is absolutely immune from liability
for damages based on the witness’ allegedly perjured testimony. Briscoe v. LaHue,
460 U.S. 325, 326 (1983) (“[W]itnesses are absolutely immune from damages liability
based on their testimony . . . .”). This immunity applies equally to a police officer.
Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999) (“Police officers enjoy the same
absolute immunity as lay witnesses for their testimony at trial, or in front of the grand
jury. The penalty for false testimony under such circumstances is the same for any
witness, that is, a potential prosecution for perjury.”) (citations omitted); Sharp v. City
of Huntsville, AL, 730 F. App’x 858, 861 (11th Cir. 2018) (“Police officers, however,
are entitled to absolute immunity from liability under section 1983 for their testimony
during trials, even if the officer is alleged to have committed perjury.”) (citing Jones).
To the extent that Jimenez sues the police officers for their alleged
unlawful acts during the arrest — Jimenez contends the officers lacked probable
cause to arrest him — the claim challenges the validity of the criminal conviction.
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
Jimenez from challenging the validity of either the conviction or the sentence
(including a fine or penalty) by a civil rights action instead of an application for the
writ of habeas corpus.
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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
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. Jimenez 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, Jimenez 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.
To the extent that Jimenez sues the police officers for an act that does not
challenge the validity of the conviction, the claim is time-barred. Generally, the state
limitation for a personal injury claim applies to a Section 1983 claim. Wilson v.

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Garcia, 471 U.S. 261, 276–79 (1985). See Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.
2003) (“Federal courts apply their forum state’s statute of limitations for personal
injury actions to actions brought pursuant to 42 U.S.C. § 1983.”) (per curiam). In
Florida, the proper limitation for a Section 1983 claim is four years. Fla. Stat.
§ 95.11(3). The limitation expired in 2012 because the arrest occurred 2008.
Dismissal before service is proper. Smith v. Shorstein, 217 F. App’x 877,
880 (11th Cir. 2007) (“The expiration of the statute of limitations warrants
dismissing a complaint as frivolous. But <[t]o dismiss a prisoner’s complaint as
time-barred prior to service, it must appear beyond a doubt from the complaint itself
that the prisoner can prove no set of facts which would avoid a statute of limitations
bar.’”) (quoting Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003)); Reynolds v.
Murray, 170 F. App’x 49, 51 (11th Cir. 2006) (“It is appropriate for a district court
to dismiss a complaint as time-barred where the prisoner fails to identify <why the
statute of limitations might be tolled in his case.’”) (quoting Hughes v. Lott, 350 F.3d
1157, 1163 (11th Cir. 2003)). See also Clark v. State of Georgia Pardons and Paroles Bd.,
915 F.2d 636, 640, n.2 (11th Cir. 1990) (“The expiration of the statute of limitations
is an affirmative defense the existence of which warrants a dismissal as frivolous.”).
****
As a consequence, Jimenez fails to state a claim upon which relief can be
granted. Notwithstanding his many supplements, amendments, and motions
(Docs. 8–18), amendment of the action would prove futile because Jimenez can state
no valid Section 1983 claim for relief. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
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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. All pending
motions are DENIED AS MOOT. This dismissal is without prejudice to Jimenez’s
re-filing a Section 1983 complaint if he succeeds in having the conviction vacated.
The clerk must enter a judgment of dismissal against Jimenez and close this case.
ORDERED in Tampa, Florida, on August 16, 2018.

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