DIEGO v. BURLESON et al
Filing
28
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
ATHENS DIVISION
ALISSA DIEGO,
*
Plaintiff,
*
vs.
*
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
*
Defendants.
*
*
*
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.
She
also alleges that her appeal was blocked and that Defendants
conspired
to
have
her
probation
revoked.
She
brought
this
action seeking an injunction, compensatory damages, and punitive
damages
against
officials.
a
superior
court
judge
and
various
other
She also asserts claims against the Eighth Judicial
Administrative District of Georgia and Greene County.
There are
three motions to dismiss pending before the Court.
Diego did
not respond to any of these motions.
detail below,
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
of
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
level.”
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.
“Rule
well-pleaded
12(b)(6)
does
not
permit
dismissal
of
a
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.
at 556).
2
FACTUAL ALLEGATIONS
Diego challenges “violations of her constitutional rights
to
be
free
imprisonment
unreasonable
without
intimidation,
distress.”
from
due
seizures,
process,
humiliation,
and
emotional
double
jeopardy,
imprisonment
distress
for
and
debt,
mental
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
County,
Georgia.
Diego
asserts
that
unnamed
Greene
County
deputies harassed her when she appeared at the Greene County
courthouse.
trespass.
Judge
Burleson
found
Diego
guilty
of
criminal
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
conference
reporter
room
before
with
Sheriff
pronouncing
Donnie
the
Harrison
sentence:
probation under the first offender statute.”
and
“12
a
court
months
Id. ¶ 5(c).
of
That
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
April
13,
2017.
She
asserts
that
her
appeal
“acts
as
a
supersedeas” but that probation officer Brett Colbert, acting
3
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.
Id.
¶ 5(h).
Diego alleges that the clerk of the Greene County Superior
Court did not send the appeal to the Court of Appeals.
Diego
further contends that “Judge Burleson, with the aid of the Chief
clerk
Ms.
appeal.”
Jackson,
had
been
purposely
blocking
[Diego’s]
Id. ¶ 5(i).
At some point, Colbert filed a petition for revocation of
Diego’s probation.
to
make
false
Diego asserts that there was a “conspiracy
allegations
. . .
to
have
[Diego’s]
probation
revoked” and that Colbert lied in his petition for revocation of
Diego’s probation.
Id.
¶ 5(j).
The revocation hearing was
scheduled for May 15, 2017; Diego filed this action that day.
In
filing
this
action,
Diego
anticipated
that
her
would be revoked and that she would be sent to jail.
4
probation
Diego
asserts
Fourteenth
claims
Amendments”
to
under
the
42 U.S.C. § 1983.
Id. ¶ 3.
claims,
claims
including
the
U.S.
“Fourth,
Constitution
Fifth
pursuant
compensatory
to
She also asserts various state law
under
the
Georgia
constitution
claims for “conspiracy and malicious prosecution.”
seeks
and
damages
and
an
“injunction
Id.
and
She
requiring
the
Defendants to respect the laws state and federal constitutions
and
laws
[sic]
and
honor
the
stay
of
proceedings
until
the
Appellate Court has rendered a decision on [Diego’s] case.”
Id.
at 6.
DISCUSSION
Diego’s
based
on
Complaint
her
misdemeanor
appears
prosecution,
criminal
to
assert
conviction,
trespass
charge.
federal
and
law
sentence
Defendants
claims
on
moved
a
to
dismiss the claims against them under a variety of alternative
theories,
addressing
including
all
of
failure
the
to
various
state
a
immunity
claim.
Instead
arguments,
which
of
are
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.
I.
Malicious Prosecution Claim
Diego’s
Complaint
can
fairly
be
read
as
attempting
to
assert a § 1983 malicious prosecution claim against at least one
5
of the Defendants.
a
violation
of
To establish such a claim, Diego must prove
her
“Fourth
Amendment
right
to
be
free
from
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:
criminal
prosecution
instituted
or
continued
by
“(1) a
the
present
defendant; (2) with malice and without probable cause; (3) that
terminated
in
the
plaintiff
accused’s
damage to the plaintiff accused.”
favor;
and
(4)
caused
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.
II.
§ 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
criminal trespass.
recover
damages
imprisonment,
conviction
expunged
. . .
or
by
for
But the Supreme Court has held that “to
allegedly
a
sentence
executive
§ 1983
has
unconstitutional
plaintiff
been
order,
must
reversed
declared
on
conviction
prove
that
direct
invalid
by
or
the
appeal,
a
state
tribunal authorized to make such determination, or called into
question
by
a
federal
court’s
issuance
6
of
a
writ
of
habeas
corpus.”
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
“A
claim for damages bearing that relationship to a conviction or
sentence that has
under § 1983.”
not
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
his
conviction
dismissed
or
unless
sentence,”
the
then
plaintiff
“the
can
complaint
demonstrate
conviction or sentence has already been invalidated.”
must
that
be
the
Id.
Here, Diego directly challenges the propriety and validity
of her criminal conviction and sentence.
favor
on
this
§ 1983
claim
would
A judgment in her
necessarily
invalidity of her conviction or sentence.
imply
the
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
reason.
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.
7
Compl. ¶ 5(e);
Compl. Ex. A, Notice of Appeal, Apr. 13, 2017, ECF No. 1-1 at 1.
She
further
alleges
that
blocked her appeal.
Judge
Burleson
and
Clerk
Jackson
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
for
Case
No.
A17A2007,
Docket Information
http://www.gaappeals.us/docket/
results_one_record.php?docr_case_num=A17A2007.
So,
despite
Diego’s allegations to the contrary, her appeal was not blocked.
This claim thus fails.
IV.
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.
Any Fifth
Amendment claim based on the double jeopardy clause is therefore
dismissed.
1
The Court may take judicial notice of “a fact that is not subject to
reasonable dispute because it . . . can be accurately and readily
determined
from
sources
whose
accuracy
cannot
reasonably
be
questioned.”
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).
8
V.
Claim for Injunctive Relief
Finally,
injunction,
Diego’s
under
Complaint
§ 1983,
can
requiring
be
read
as
Defendants
seeking
an
“honor
the
to
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
on
Judge
serving
Burleson’s
her
conviction.
sentence
Rather,
determination
even
Diego
that
though
she
Diego
had
should
appealed
begin
her
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
liability
for
deprivations
of
rights
“secured
by
the
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
2
To the extent that Diego is requesting an injunction that Defendants
simply “respect the laws,” that request must be denied.
The Court
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
required.”
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).
9
honor a stay, Diego’s Complaint does not establish that a stay
actually
existed.
applies to her case.
Diego
asserts
that
O.C.G.A. §
5-6-35(h)
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
supersedeas
to
supersedeas.”
that
she
the
extent
that
a
notice
O.C.G.A. § 5-6-35(h).
was
appealing
a
of
appeal
acts
as
But Diego did not allege
decision
in
a
case
listed
in
O.C.G.A. § 5-6-35(a), and she also did not allege that she filed
an
application
for
an
appeal
under
O.C.G.A. §
Therefore, O.C.G.A. § 5-6-35(h) does not apply.
5-6-35(b).
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
bail.”
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
allegations
to
suggest
that
O.C.G.A. § 5-6-45(a)
applies
to
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.
Section
1983
states
that
“in
any
action
brought
against
a
judicial officer for an act or omission taken in such officer’s
10
judicial capacity, injunctive relief shall not be granted unless
a
declaratory
unavailable.”
decree
was
violated
42 U.S.C. § 1983.
or
declaratory
relief
was
There is no allegation that
Judge Burleson violated a declaratory decree or that declaratory
relief
was
unavailable.
For
all
of
these
reasons,
Diego’s
Complaint does not state a valid claim for injunctive relief.
VI.
State Law Claims
In
addition
to
her
federal
law
claims,
Diego
asserts
various state law claims, although it is not entirely clear what
they are.
which
it
Given that the Court “has dismissed all claims over
has
original
jurisdiction,”
exercise
supplemental
jurisdiction
claims.
28 U.S.C. § 1367(c)(3).
the
over
Court
declines
to
Diego’s
state
law
Those claims are dismissed
without prejudice.
CONCLUSION
For
the
reasons
set
forth
above,
the
Court
grants
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
11
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?