Russell v. Harper
ORDER that the Complaint is DISMISSED WITHOUT PREJUDICE. If Russell wishes to amend his complaint to remedy the noted deficiencies, he shall file an Amended Complaint no later than January 21, 2022. The Clerk is DIRECTED to mail to Russell a copy of both the standard prisoner civil rights complaint form and this order. Signed by Judge Kathryn Kimball Mizelle on 1/7/2022. (LSC)
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 1 of 7 PageID 41
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:21-cv-1558-KKM-AAS
Plaintiff Adrian Russell’s filed a complaint bringing claims under 42 U.S.C.
§ 1983. (Doc. 1.) Russell is pretrial detainee proceeding pro se.
Although federal courts must read a plaintiff’s pro se allegations in a liberal
fashion, Haines v. Kerner, 404 U.S. 519, 519–520 (1972), they must conduct an initial
screening of civil suits brought by prisoners seeking redress from a governmental
entity or its employee to determine whether they should proceed, 28 U.S.C. §
1915(A). A court is required to dismiss a complaint, or any portion thereof, if the
complaint fails to identify cognizable claims; is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915(A)(b); see also 28 U.S.C.
§ 1915(e)(2) (requiring dismissal of a complaint in an in forma pauperis proceeding
under the same circumstances). A complaint is frivolous if it is without arguable
merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissals
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 2 of 7 PageID 42
for failure to state a claim are governed by Federal Rule of Civil Procedure 12(b)(6).
See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section
1915(e)(2)(B)(ii) tracks the language of Fed. R. Civ. P. 12(b)(6)”).
“[S]ection 1983 provides a method for vindicating federal rights conferred
by the Constitution and federal statutes.” Bannum, Inc. v. City of Fort Lauderdale,
901 F.2d 989, 997 (11th Cir. 1990). To successfully plead a Section 1983 claim, a
plaintiff must allege two elements: “(1) that the act or omission deprived plaintiff
of a right, privilege or immunity secured by the Constitution or laws of the United
States, and (2) that the act or omission was done by a person acting under color of
law.” Id. at 996–97. Thus, a plaintiff must show that the defendant acted under the
color of state law or otherwise showed some type of state action that led to the
violation of his rights. Id.
The Court dismisses the complaint without prejudice because Russell fails
to state a claim upon which relief may be granted under § 1983. First, Russell has
not adequately named any defendant or identified the defendant’s conduct
alleged in this case. In the caption of the civil rights complaint form, Russell names
“Banded Thru troy Fain insur” as the defendant in this case. (Doc. 1 at 1.) In the
section of the complaint form listing defendants, he names “Mrs. Kristian Harper”
as the only defendant in this case. (Doc. 1 at 2.) Neither “Banded Thru troy Fain
insur” nor Ms. Harper are mentioned again in the complaint. Russell alleges no
facts to describe what type of entity “Banded Thru troy Fain insur” is or how this
entity acted under the color of state law to deprive him of his constitutional rights.
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 3 of 7 PageID 43
Russell states that Ms. Harper’s job or title is “insurance,” but fails to allege any
facts to show she acted under the color of state law to deprive him of his
Second, Russell’s claim (or claims) is largely unintelligible. The complaint
alleges that his Fourth and Fourteenth Amendment rights were violated when
“[Russell] was illegally authorized, notarize from a illegally notary that was not a
judicial officer.” (Doc. 1 at 4.) This disjointed statement lacks clarity, leaving the
reader without any idea who was involved or how Russell’s constitutional rights
were violated by these nameless defendants. In attempting to describe the incident
giving rise to his claim, Russell alleges that on March 9, 2018, “the state attorney
filed charges against [him] from a false affidavit which was under a penalty an[sic]
perjury an[sic] that was not [illegible] justification to be [illegible] from illegally
magistrate that is not a illegally judicial official.” (Doc. 1 at 5.) Again, this statement
is incoherent. Russell does not describe the affidavit or any circumstances
surrounding the affidavit, such as how the affidavit was falsified, who submitted
the false affidavit, or what criminal charges resulted from the false affidavit.
Third, Russell’s description of his injury is similarly unintelligible. He
alleges that “[he] [has] been physically mentally anguish an[sic] suffered being
mentally involved in this way of living an[sic] have been taking medical [illegible]
an[sic] zolof.” (Doc. 1 at 5.) He seeks $25,000 “for ever[sic] second [he] [has] been
incarcerated until [he’s] released.” (Id.) Russell fails to describe his injury with any
specificity, nor does he describe how a violation of his constitutional rights
resulted in an injury. It is unclear whether Russell’s alleged injury is physical,
mental, or both.
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 4 of 7 PageID 44
Because this is Russell’s first complaint and the Court is conducting its
required initial screening before any defendant has been served, it will permit
Russell the opportunity to amend. If Russell can adequately identify a defendant
and assert facts to state a claim for a violation of his constitutional rights, he may
amend his complaint.
Russell should be aware: the factual allegations in his amended complaint
must “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). A complaint must
give “the defendants fair notice of what the . . . claim is and the grounds upon
which it rests” and provide “more than labels and conclusions [or] a formulaic
recitation of the elements of a cause of action[.]” Twombly, 550 U.S. at 555. More
than conclusory and vague allegations are required to state a cause of action under
§ 1983. Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984). In the amended
complaint, Russell must clearly name a defendant (or defendants), identify a claim
(or claims) for relief, state relevant facts that support each claim, and explain how
each defendant caused the alleged constitutional violations.
To the extent Russell contests the constitutionality of the criminal charges
pending against him in state court, he should note that “a federal court may not
interfere with ongoing state criminal proceedings except in the most extraordinary
circumstances.” Lawrence v. Miami-Dade State Attorney, 272 F. App’x 781, 781–82
(11th Cir. 2008). “Under the Younger abstention doctrine, to justify federal
intervention, a petitioner must show manifest bad faith and injury that is great,
immediate, and irreparable, constituting harassment of the plaintiff in the exercise
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 5 of 7 PageID 45
of his constitutional rights, and resulting in a deprivation of meaningful access to
the state courts.” Id. (citations omitted).
Finally, Title 42 U.S.C. § 1997e(e) provides that “[n]o 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 or the commission of a sexual act (as defined in section 2246 of Title
18).” “The physical injury requirement is not a bar to filing suit, only a limitation
on recovery. And § 1997e(e) limits a prisoner only from recovering damages that
redress, or compensate him for, a mental or emotional injury, when no physical
injury is shown.” Hoever v. Marks, 993 F.3d 1353, 1360 (11th Cir. 2021) (en banc).
Accordingly, it is ORDERED that:
The Complaint is DISMISSED WITHOUT PREJUDICE.
If Russell wishes to amend his complaint to remedy the noted
deficiencies, he shall file an Amended Complaint no later than
January 21, 2022.
To amend his Complaint, Russell should complete a new civil
rights complaint form, titling it “Amended Complaint.” The
Amended Complaint must include all of Russell’s claims in this
action and may not refer back to, or incorporate, the original
complaint. The Amended Complaint shall supersede the
original complaint. Malowney v. Fed. Collection Deposit Group,
193 F.3d 1342, 1345 n.1 (11th Cir. 1999).
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 6 of 7 PageID 46
The Amended Complaint will be subject to initial screening
under 28 U.S.C. § 1915A.
If Russell fails to file an Amended Complaint by January 21, 2022, or
fails to seek an extension of time to do so, this order will become a
final judgment. “[A]n order dismissing a complaint with leave to
amend within a specified time becomes a final judgment if the time
allowed for amendment expires without the plaintiff [amending his
complaint or] seeking an extension. And when the order becomes a
final judgment, the district court loses ‘all its prejudgment powers to
grant any more extensions’ of time to amend the complaint.” Auto.
Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d
707, 720–71 (11th Cir. 2020) (quoting Hertz Corp. v. Alamo Rent-A-Car,
Inc., 16 F.3d 1126 (11th Cir. 1994)).
Russell must advise the Court of any change of address. He must
entitle the paper “Notice to the Court of Change of Address” and
must exclude any motions from the notice. Failure to inform the Court
of an address change may result in the dismissal of this case without
The Clerk is DIRECTED to mail to Russell a copy of both the standard
prisoner civil rights complaint form and this order.
DONE and ORDERED in Tampa, Florida on January 7, 2022.
Case 8:21-cv-01558-KKM-AAS Document 6 Filed 01/07/22 Page 7 of 7 PageID 47
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?