DIEGO v. BURLESON et al
ORDER granting 15 , 18 , 25 Motions to Dismiss. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/29/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JUDGE ALLISON BURLESON, in her
official capacity as judge;
EIGHTH JUDICIAL ADMINISTRATIVE
DISTRICT OF GEORGIA, OCMULGEE
CIRCUIT; DEBORAH JACKSON, in
her official capacity as Clerk
of Superior Court; JEAN G.
MANGAN, in her official
capacity as assistant district
attorney; SHERIFF DONNIE
HARRISON, in his official
capacity as Greene County
Sheriff; GREENE COUNTY GOV’T;
and BRETT COLBERT, in his
official capacity as chief
probation officer, Judicial
Alternatives of Georgia
CASE NO. 3:17-CV-81 (CDL)
O R D E R
Plaintiff Alissa Diego, who is proceeding pro se, alleges
that she was wrongfully prosecuted for and convicted of criminal
trespass, subjected to unreasonable probation conditions, and
made to serve her probation sentence after she appealed it.
also alleges that her appeal was blocked and that Defendants
action seeking an injunction, compensatory damages, and punitive
She also asserts claims against the Eighth Judicial
Administrative District of Georgia and Greene County.
three motions to dismiss pending before the Court.
not respond to any of these motions.
As discussed in more
Diego’s Complaint fails to state a claim upon
which relief can be granted, so the three motions to dismiss
(ECF Nos. 15, 18 & 25) are granted.
MOTION TO DISMISS STANDARD
“To survive a
motion to dismiss” under Federal Rule
Civil Procedure 12(b)(6), “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, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
The complaint must include sufficient factual
allegations “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
In other words, the factual
allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.
Id. at 556.
complaint 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.
Diego challenges “violations of her constitutional rights
Compl. ¶ 4, ECF No. 1.
Diego’s Complaint is not long on details, but she appears
to allege that she was a defendant in a criminal proceeding
before Judge Alison Burleson in the Superior Court of Greene
deputies harassed her when she appeared at the Greene County
Diego disagrees with that finding, but she did not
allege any specific facts to demonstrate that Judge Burleson
erred in finding her guilty.
After announcing the conviction, Judge Burleson went into a
probation under the first offender statute.”
Id. ¶ 5(c).
sentence included a number of conditions, including “banishment
from Greene County” and drug and alcohol testing.
Id. ¶ 5(d).
Diego filed an appeal in the Georgia Court of Appeals on
supersedeas” but that probation officer Brett Colbert, acting
pursuant to Judge Burleson’s orders, required Diego to begin her
probation sentence regardless of the appeal.
Id. ¶ 5(e).
Diego filed a motion for “Injunction of Sentencing Pending
Appeal,” and Judge Burleson set a hearing but required that
Diego continue serving her probation sentence pending a ruling
on that motion.
Id. ¶ 5(g).
Diego appeared at 10:30 a.m. on
the day of the hearing (there is no allegation on what time the
hearing was supposed to be, but the Complaint implies that Diego
was late despite her best efforts).
Diego was told that the
motion would not be heard and that she needed to refile it.
Diego alleges that the clerk of the Greene County Superior
Court did not send the appeal to the Court of Appeals.
further contends that “Judge Burleson, with the aid of the Chief
Id. ¶ 5(i).
At some point, Colbert filed a petition for revocation of
Diego asserts that there was a “conspiracy
. . .
revoked” and that Colbert lied in his petition for revocation of
The revocation hearing was
scheduled for May 15, 2017; Diego filed this action that day.
would be revoked and that she would be sent to jail.
42 U.S.C. § 1983.
Id. ¶ 3.
She also asserts various state law
claims for “conspiracy and malicious prosecution.”
Defendants to respect the laws state and federal constitutions
Appellate Court has rendered a decision on [Diego’s] case.”
dismiss the claims against them under a variety of alternative
different for each Defendant and which do not necessarily impact
Diego’s claim for injunctive relief, the Court will focus on the
issue common to all Defendants: whether Diego’s Complaint fails
to state a claim upon which relief can be granted.
Malicious Prosecution Claim
assert a § 1983 malicious prosecution claim against at least one
of the Defendants.
To establish such a claim, Diego must prove
unreasonable seizures in addition to the elements of the common
law tort of malicious prosecution.”
Wood v. Kesler, 323 F.3d
872, 881 (11th Cir. 2003) (emphasis omitted).
The elements of
the common law tort of malicious prosecution include:
defendant; (2) with malice and without probable cause; (3) that
damage to the plaintiff accused.”
Id. at 882 (citing Uboh v.
Reno, 141 F.3d 1000, 1004 (11th Cir. 1998)).
Diego does not
allege that the criminal proceeding in Greene County Superior
Court terminated in her favor.
Her § 1983 malicious prosecution
claim thus fails and must be dismissed.
§ 1983 Challenge to Diego’s Conviction and Sentence
Diego’s Complaint can also be fairly read as attempting to
assert a § 1983 claim based on her conviction and sentence for
. . .
But the Supreme Court has held that “to
tribunal authorized to make such determination, or called into
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
claim for damages bearing that relationship to a conviction or
sentence that has
under § 1983.”
been so invalidated is not cognizable
Id. at 487.
In other words, if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of
conviction or sentence has already been invalidated.”
Here, Diego directly challenges the propriety and validity
of her criminal conviction and sentence.
A judgment in her
invalidity of her conviction or sentence.
Diego does not allege
that either the conviction or the sentence has been invalidated.
Accordingly, under Heck, Diego may not pursue § 1983 damages
claims based on her conviction and sentence.
To the extent that
Diego is attempting to pursue a conspiracy claim based on her
prosecution, sentence, and conviction, it fails for the same
III. § 1983 Claim Based on the “Blocked” Appeal
Diego’s Complaint can also be fairly read as attempting to
assert a § 1983 claim based on the conduct of Judge Burleson and
Clerk Jackson in allegedly blocking her appeal to the Georgia
Court of Appeals.
Diego alleges that she filed an appeal in the
Georgia Court of Appeals on April 13, 2017.
Compl. ¶ 5(e);
Compl. Ex. A, Notice of Appeal, Apr. 13, 2017, ECF No. 1-1 at 1.
blocked her appeal.
Based on the Court’s review of the docket
system of the Georgia Court of Appeals, however, the Court takes
judicial notice of the fact that Diego’s appeal of her criminal
trespass conviction (Case No. 2017 SU-CR-000119) is currently
pending in the Georgia Court of Appeals as Case Number A17A2007;
that appeal has an “Appealed Order” date of April 13, 2017 and a
“Notice of Appeal” date of April 13, 2017.1
Diego’s allegations to the contrary, her appeal was not blocked.
This claim thus fails.
Fifth Amendment Double Jeopardy Claim
Diego invokes the Fifth Amendment’s double jeopardy clause,
but she did not make any factual allegations to suggest that she
was “twice put in jeopardy.”
U.S. Const. amend. V.
Amendment claim based on the double jeopardy clause is therefore
The Court may take judicial notice of “a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily
Fed. R. Evid. 201(b)(2).
Accordingly, the “Court may
take judicial notice of publicly filed documents, such as those in
state court litigation.”
U.S. ex rel. Osheroff v. Humana Inc., 776
F.3d 805, 811 n.4 (11th Cir. 2015).
Claim for Injunctive Relief
stay of proceedings until the Appellate Court has rendered a
decision on the Plaintiff’s case.”2 Id. at 6.
As a preliminary
matter, it does not appear that Diego is alleging a deprivation
of her rights under the U.S. Constitution or federal law based
seems to be asserting that Judge
Burleson did not follow state law when she directed that Diego
begin serving her probation sentence in spite of the appeal.
This is a question of pure state law, and § 1983 only imposes
Constitution and laws” of the United States, not liability for
violations of state law that do not amount to a deprivation of
rights secured under federal law.
42 U.S.C. § 1983.
Furthermore, even if Diego’s Complaint could be read to
allege a constitutional violation based on an alleged failure to
To the extent that Diego is requesting an injunction that Defendants
simply “respect the laws,” that request must be denied.
cannot enter such a vague injunction.
Under Federal Rule of Civil
Procedure 65(d), every injunction must “state its terms specifically”
and “describe in reasonable detail . . . the act or acts restrained or
Fed. R. Civ. P. 65(d)(1).
The courts thus routinely
reject injunctions that “do no more than instruct the [defendant] to
‘obey the law.’” Burton v. City of Belle Glade, 178 F.3d 1175, 1201
(11th Cir. 1999).
honor a stay, Diego’s Complaint does not establish that a stay
applies to her case.
That statute provides: “The filing of an
application for appeal [under O.C.G.A. § 5-6-35(b) in certain
types of cases listed in O.C.G.A. § 5-6-35(a)] shall act as a
O.C.G.A. § 5-6-35(h).
But Diego did not allege
O.C.G.A. § 5-6-35(a), and she also did not allege that she filed
Therefore, O.C.G.A. § 5-6-35(h) does not apply.
There is a
statute that provides that a notice of appeal in criminal cases
“shall serve as supersedeas in all cases where a sentence of
death has been imposed or where the defendant is admitted to
O.C.G.A. § 5-6-45(a).
Diego does not allege any facts
to suggest that her sentence was bailable or that she requested
and was granted an appeal bond, and she does not make any other
O.C.G.A. § 5-6-45(a)
Diego’s appeal of her misdemeanor criminal trespass conviction.
Her claim for injunctive relief fails for this reason.
Furthermore, even if a stay did exist under Georgia law,
the only Defendant who can “honor the stay” is Judge Burleson.
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless
42 U.S.C. § 1983.
There is no allegation that
Judge Burleson violated a declaratory decree or that declaratory
Complaint does not state a valid claim for injunctive relief.
State Law Claims
various state law claims, although it is not entirely clear what
Given that the Court “has dismissed all claims over
28 U.S.C. § 1367(c)(3).
Those claims are dismissed
Defendants’ motions to dismiss (ECF Nos. 15, 18 & 25).
IT IS SO ORDERED, this 29th day of September, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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