STERLING v. NEWLAND
ORDER Dismissing Plaintiff's Complaint. Ordered by U.S. District Judge C ASHLEY ROYAL on 4/23/14. (lap) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
KENNETH MELVIN STERLING, III, :
CASE NO. 3:13-CV-149-CAR
On December 30, 2013, the Court received from Plaintiff Kenneth Sterling a
“Petition for Interlocutory Injunctive Relief” while he was confined as a pre-trial detainee
at the Athens-Clarke County Jail.1 (Doc. 1.)
Plaintiff also filed a motion to proceed
without the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a).
Plaintiff’s motion to proceed in forma pauperis was granted2 and Plaintiff was directed to
file an amended complaint using the standard §1983 forms. Plaintiff filed an amended
petition on March 21, 2014, but a review of the amended petition reveals it is simply a
second copy of Plaintiff’s original pleading.
(Docs. 9, 10.)
This court construes
Plaintiff was released on bond from the Athens-Clarke County Jail at some point prior to
January 21, 2014. (Doc. 7.)
Even though Plaintiff has been released from custody, he shall remain obligated to pay any
remaining balance due of the above filing fee; Plaintiff shall continue to remit monthly payments
as required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due by
any means permitted by law is hereby authorized in the event Plaintiff fails to remit payments.
Plaintiff’s pleading as a complaint under 42 U.S.C. § 1983,3 and, as such, Plaintiff’s
complaint is subject to preliminary review under 28 U.S.C. § 1915A.
Turning to the facts alleged in the petition, Plaintiff seeks injunctive relief against
Athens-Clarke County Assistant District Attorney Reed Newland. The original petition,
as well as Plaintiff’s Amended petition (Docs. 9, 10), alleges that Newland “has
undertaken proceedings on behalf of the state of Georgia which are without probable
cause and motivated by bad faith involving constructive fraud, malfeasance, and willful
designs to mislead and deceive the Superior Court of Georgia.” The petitions then delve
into the history behind the criminal allegations, specifically charges of terroristic threats,
which were made against Plaintiff. It appears that the relief Plaintiff seeks is a dismissal
of the charges against him.
Standard of Review
Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” this Court is required to conduct a
preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). In so doing, the
district court must accept all factual allegations in the Complaint as true. Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this
case, are also “held to a less stringent standard than pleadings drafted by attorneys and
“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” Trawinski v. United Technologies, 313 F.3d 1295, 1297
will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998). Even so, a district court must dismiss a prisoner complaint after
the initial review if: (1) it 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(b); see also 28 U.S.C. §1915(e)(2)(B) (requiring the
same of pleadings filed parties proceeding in forma pauperis).
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably meritless.”
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint is thus properly
dismissed by the district court sua sponte if it is found to be “without arguable merit
either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
When determining whether a complaint fails to state a claim, the Court must
accept as true all facts set forth in the plaintiff’s complaint and limit its consideration to
the pleadings and exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see
also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (“The standards governing
dismissal under Rule 12(b)(6) apply to § 1915(e)(2)(b)(ii).”).
“[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “[A]
formulaic recitation of the elements of a cause of action will not do[.]” Id. Although the
complaint must contain factual allegations that “raise a reasonable expectation that
discovery will reveal evidence of” the plaintiff’s claims, id. at 556, a complaint should
not be dismissed “simply because ‘it strikes a savvy judge that actual proof of those facts
is improbable,’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556).
To state a claim for relief under § 1983, a plaintiff must allege that: (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or a
statute of the United States; and (2) the act or omission was committed by a person acting
under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1581 (11th Cir. 1995).
If a litigant cannot satisfy these requirements, or fails to provide factual allegations in
support of his claim or claims, the complaint is subject to dismissal. See Chappell v.
Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming court’s dismissal of a §1983
complaint because factual allegations were insufficient to support alleged constitutional
violation). See also 28 U.S.C. 1915A(b) (dictating that a complaint, or any portion
thereof, that does not pass the standard in § 1915A “shall” be dismissed on preliminary
“[P]rosecutors are absolutely immune from liability in § 1983 lawsuits” brought
for actions “that are intimately associated with the judicial phase of the criminal process.”
Van de Kamp v. Goldstein, 555 U.S. 335, 129 S. Ct. 855, 860 (2009) (internal quotation
marks and citations omitted). Actions which entitle the prosecutor to absolute immunity
include those in which “a prosecutor prepares to initiate a judicial proceeding, or appears
in court to present evidence in support of a search warrant application.” Van de Kamp,
129 S. Ct. at 861. Prosecutors, however, are not immune from claims for declaratory and
injunctive relief. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). To state a claim
for declaratory or injunctive relief, a plaintiff must allege (1) the violation of a right, (2)
that there is a serious risk of continuing irreparable injury if relief is not granted, and
(3)that no adequate remedy at law exists. See id. Plaintiff’s petition does not satisfy
these pre-requisites. There is an adequate remedy at law for the violations alleged.
Plaintiff may file an appropriate motion in his criminal case or petition for writ of habeas
corpus in state or federal court. See O.C.G.A. § 9-14-1(a) (“Any person restrained of his
liberty under any pretext whatsoever, except under sentence of a state court of record,
may seek a writ of habeas corpus to inquire into the legality of the restraint.”); See also,
O.C.G.A. § 9-6-20 (providing for a “writ of mandamus . . . to compel a due performance
if there is no other specific legal remedy for the legal rights”).
As such, all claims
against Defendant Newland should be dismissed.
Furthermore, even if Plaintiff’s allegations are true, this Court cannot provide him
any relief. Because Plaintiff’s criminal prosecution is ongoing, the Supreme Court’s
decision in Younger v. Harris, 401 U.S. 37 (1971) requires that this Court abstain from
interfering with those proceedings. Specifically, the Supreme Court stated that federal
courts “should not act, and particularly should not act to restrain a criminal prosecution,
when the moving party has an adequate remedy at law and will not suffer irreparable
injury if denied equitable relief.” Younger, 401 U.S. at 43-44. Exceptions to Younger are
made in only three circumstances: “(1) there is evidence of state proceedings motivated
by bad faith, (2) irreparable injury would occur, or (3) there is no adequate alternative
state forum where the constitutional issues can be raised.” Id. at 45.
In the present case, Plaintiff summarily alleges that Defendant Newland is
prosecuting him for terroristic threats in bad faith. Plaintiff, however, fails to make any
specific allegations supporting his conclusory statements. The argument in support of
Plaintiff’s claims is merely that Defendant Newland refuses to see the evidence as
Plaintiff does and has “manufactured fictions designed to asperse the Plaintiff’s character
and standing.” (Am. Compl. 2.). Further, Plaintiff has failed to allege facts sufficient to
justify this Court’s intervention under the other exceptions to Younger. There is no
indication that Plaintiff will suffer an irreparable injury, and he can certainly raise his
constitutional claims in state court. See O.C.G.A. § 9–14–1(a) (“Any person restrained of
his liberty ..., except under sentence of a state court of record, may seek a writ of habeas
corpus to inquire into the legality of the restraint.”); Pope v. Apple, 2011 WL 4889089 at
* 2 (S.D. Ga. Sept. 16, 2011) (Georgia law allows “pretrial detainees to raise . . . these
types of claims either during state criminal proceedings or collaterally in a state habeas
corpus action.”). Therefore, Plaintiff’s claims must be dismissed.
Plaintiff also has pending a Motion for Subpoena to Produce Case File and all
Transcripts of Pleadings.
Because the Court is dismissing Plaintiff’s
complaint, this motion is DISMISSED as moot.
Having conducted a preliminary review of Plaintiff’s Complaint, as required by 29
U.S.C. § 1915A(a), the Court finds that Plaintiff’s complaint against the Defendant
should be DISMISSED.
For purposes of the three strikes provision of the Prison
Litigation Reform Act (PLRA), the Court determines that its decision in this case is a
strike against Plaintiff. See 28 U.S.C. § 1915(g) (Counting as strikes any action or appeal
in federal court “that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted.”).
SO ORDERED, this 23rd day of April, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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