KELLY v. BIBB COUNTY GEORGIA

Filing 4

ORDER: Leave to proceed in forma pauperis is GRANTED, but only for the purpose of dismissal. Plaintiff's 1 Complaint is DISMISSED WITHOUT PREJUDICE. Ordered by Judge Marc Thomas Treadwell on 10/24/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DENNIS KELLY,

:
:
Plaintiff
:
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VS.
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BIBB COUNTY GEORGIA,
:
:
Defendant
:
_______________________________

CIVIL ACTION: 5:11-CV-414-MTT

ORDER OF DISMISSAL

Plaintiff DENNIS KELLY, a prisoner at Baldwin State Prison in Hardwick, Georgia,
has filed a pro se civil rights complaint under 42 U.S.C. '1983. Plaintiff has not paid the
$350.00 filing fee or sought leave to proceed without pre-payment of the filing fee or
security therefor pursuant to 28 U.S.C. §1915(a). Because Plaintiff has not paid the filing
fee, the Court will assume he wishes to proceed in forma pauperis. After a review of
Plaintiff’s Complaint, however, the Court finds that it fails to state a colorable claim. The
Complaint is, therefore, DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Thus, leave to
proceed in forma pauperis is GRANTED, but only for the purpose of dismissal.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. ' 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint Awhich seeks redress from a governmental entity or
officer or employee of a governmental entity.@ Section 1915A(b) requires a federal court
to dismiss a prisoner complaint that is: (1) Afrivolous, malicious, or fails to state a claim
upon which relief may be granted@; or (2) Aseeks monetary relief from a defendant who is
immune from such relief.@ When conducting this review, the 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 are also “held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.@ Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
STATEMENT AND ANALYSIS OF CLAIMS
According to the Complaint in this case, Plaintiff was sentenced in Ware1 County
Georgia for “absconding.” He presumably served his sentence and was then released.
At that time, Plaintiff went to Toombs County where his probation officer, Jessica
Clement, advised Judge Kathy Palmer that Plaintiff had escaped even though he had
served his time for absconding. Plaintiff was then sentenced to another year in prison.
The only named Defendant in the case is “Bibb County Georgia.” It is entirely
unclear how Bibb County has any connection with this case, and Plaintiff makes no
allegations against Bibb County in his Complaint. Thus, the sole named Defendant is
entitled to dismissal. It is well-settled that a district court properly dismisses defendants
where a prisoner, other than naming the defendant in the caption of the complaint, fails to
state any allegations that connect the defendants with the alleged constitutional violation.
Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (citing Pamel Corp. v. P.R.
Highway Auth., 621 F.2d 33, 36 (1st Cir. 1980) (“While we do not require technical
niceties in pleading, we must demand that the complaint state with some minimal
particularity how overt acts of the defendant caused a legal wrong.”).
Though, in some cases, a plaintiff may be permitted to amend his Complaint to
correct this type of error, Plaintiff cannot save the present Complaint by merely amending
the named defendant. First of all, the events forming the basis of Plaintiff's Complaint
1 The Complaint alleges that Plaintiff served his sentence in “War County.” The Court assumes
that Plaintiff meant to say Ware County.

occurred in Toombs County, which is located in the Southern District of Georgia. The
appropriate defendants also presumably reside in the Southern District of Georgia.
Therefore, the Southern District of Georgia is the proper venue for this cause of action,
not the Middle District. The Complaint is thus due to be dismissed for improper venue.
Moreover, even if Plaintiff had named the proper defendants and filed this action
in the proper venue, his substantive claims are barred under Heck v. Humphrey, 512 U.S.
477, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that
in order to recover damages for 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.
Id. at 486-87. Thus, a prisoner cannot bring a §1983 action which could potentially
invalidate a sentence or conviction unless the sentence or conviction in question has
previously been reversed, expunged, set aside, or called into question by the issuance of
a writ of habeas corpus. Id.
Plaintiff's allegations in this case, if proven, would obviously invalidate his
additional one-year sentence. Because Plaintiff has not alleged that his sentence has
been reversed, expunged, set aside, or called into question by the issuance of a writ of
habeas corpus, Heck bars all of Plaintiff’s §1983 claims related to this sentence. Plaintiff
must, therefore, return to the appropriate court and attempt to invalidate his sentence. If
Plaintiff should succeed, he may then institute a §1983 action for damages against the
proper defendants in the appropriate federal court.

At this time, Plaintiff’s Complaint, as filed, fails to state a claim upon which relief
may be granted. It is accordingly DISMISSED without prejudice under 28 U.S.C.
§1915A(b)(1). Leave to proceed in forma pauperis is GRANTED, but only for the purpose
of this dismissal.
SO ORDERED, this 24th day of October, 2011.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
jlr