EBERHART et al v. OUBRE et al

Filing 4

ORDER: This action is DISMISSED WITHOUT PREJUDICE as to Ricky Lamar Hogan and DIMISSED WITH PREJUDICE for failing "to state a claim upon which relief may be granted" as to Michael Dino Eberhart. Ordered by Judge Marc Thomas Treadwell on 5/18/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MICHAEL DINO EBERHART;
RICKY LAMAR HOGAN,
Plaintiffs,
VS.
Warden SHEILA OUBRE;
STATE OF GEORGIA,
Defendants.
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NO: 5:12-CV-171 (MTT)

ORDER

Plaintiffs MICHAEL DINO EBERHART and RICKY LAMAR HOGAN, both
prisoners at Baldwin State Prison in Hardwick, Georgia, have filed a pro se civil rights
complaint under 42 U.S.C. ' 1983.
Plaintiffs claim that they are filing “jointly together and on behalf of themselves.”
(Doc. 1 at 1)1. In the forty page complaint, both claim to be “in the custody of the named
Defendants . . . pursuant to an (‘illegally’) imposed (‘utterly void’) . . . Dekalb County
Superior Court judgment.” (Doc. 1 at 5). Plaintiffs seek declaratory relief for being
wrongly convicted pursuant to “facially defective” and “fundamentally flawed” indictments
that failed to allege the “essential elements of the State’s crimes charged.” (Doc. 1 at 9,
15). Plaintiffs ask the Court to declare their indictments defective, declare that they are
being “illegally, unlawfully, and unconstitutionally imprisoned,” and to order their
“immediate physical release and discharge.” (Doc. 1 at 23).

1

When referring to this case, the page numbers used in this Order are the CM/ECF page
numbers. Plaintiffs placed numbers on the bottom of some pages of their complaint and failed to
place numbers on others. Therefore, the Court does not use the numbers that Plaintiffs wrote in
the complaint.

This is not the first time Eberhart and Hogan have sought to file this “joint” action.
On April 6, 2012, Plaintiffs filed a similar action in the United States District Court for the
Northern District of Georgia. Eberhart, et al. v. State of Georgia, No. 1:12-CV-1197
(ODE) (N. D. Ga.). In that case, Plaintiffs made the same basic allegations, but included
more Defendants and sought to proceed in forma pauperis. The United States District
Court for the Northern District of Georgia informed Plaintiffs that their 57-page complaint
suffered from several fatal defects: (1) It violated Federal Rule of Civil Procedure
8(a)(2), which requires “a short and plain statement of the claim[s] showing that the
pleader is entitled to relief”; (2) it falsely stated that Plaintiffs had not filed any previous
lawsuits while incarcerated; and (3) it violated the Prison Litigation Reform Act’s
requirement that “’each prisoner must bring a separate suit in order to satisfy the Act’s
requirement that each prisoner pay the full filing fee’.” Eberhart, et al v. State of Georgia,
No. 1:12-CV-1197 (ODE) (N. D. Ga) (Doc. 4) (quoting Hubbard v. Haley, 262 F.3d 1194,
1198 (11th Cir. 2001). The Court dismissed the action without prejudice and sent “each
Plaintiff a form civil rights complaint and a financial affidavit that Plaintiffs may use to file
separate civil actions.” Id. at Doc. 5 (emphasis added).
Instead of each filing a separate civil action, as they were clearly told to do,
Eberhart and Hogan have once again filed a 42 U.S.C. § 1983 action “jointly together.”
(Doc. 1 at 1). However, instead of filing a motion to proceed in forma pauperis, Michael
D. Eberhart submitted a money order in the amount of $350.00. Therefore, Eberhart has
paid his filing fee. The Court has not received a filing fee from Hogan.
As he was told by the United States District Court for the Northern District, Hogan
cannot avoid paying the required filing fee by filing jointly with Eberhart. Hubbard, 262

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F.3d at 1198. Having not received a filing fee from Hogan, the Court assumes that he
wishes to proceed in forma pauperis. This Court informed Hogan as recently as
February 2, 2012 that he has three strikes pursuant to 28 U.S.C. § 1915(g) and he may
not proceed in forma pauperis unless he is under “imminent danger of serious physical
injury.” Hogan v. State of Georgia, No. 5:12-CV-31 (CAR) (M. D. Ga.) (Doc. 6); 28
U.S.C. § 1915(g). He is not and, therefore, he may not.
Ricky Lamar Hogan is DISMISSED WITHOUT PREJUDICE from this action.
Should he desire to re-file, he may do so as long as he pays the full $350.00 filing fee at
the time of filing.
As explained above, the Court received a money order in the amount of $350.00
from Michael Dino Eberhart. Therefore, the Court will review the merits of the complaint
as they relate to Eberhart.
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.@ The statutory language clearly authorizes
this screening even if the prisoner has paid the full filing fee. Thompson v. Hicks, 213
F. App’x 939, 942 (11th Cir. 2007); Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir 1999);
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). 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.@
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are Aclearly baseless@ or that the legal theories are Aindisputably meritless.@

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Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim
when it does not include Aenough factual matter (taken as true)@ to Agive the defendant fair
notice of what the . . . claim is and the grounds upon which it rests[.]@ Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that A[f]actual allegations must be
enough to raise a right to relief above the speculative level,@ and that the complaint Amust
contain something more . . . than Y a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action@) (internal quotations and citations omitted); see
also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that Athreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice@).

In making the above determinations, all factual allegations in the complaint

must be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
Moreover, A[p]ro se pleadings are 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).
In order 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 County, 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, then the complaint is subject to dismissal.
See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district
court=s dismissal of a ' 1983 complaint because the plaintiff=s factual allegations were
insufficient to support the alleged constitutional violation). See also 28 U.S.C.

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§ 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the
standard in ' 1915A Ashall@ be dismissed on preliminary review).
As state above, Eberhart claims that that he was wrongfully convicted because the
indictment charging him with murder was “facially defective” and “fundamentally flawed”
because it failed to allege the essential elements of murder. (Doc. 1 at 9, 15). Eberhart
wants the Court to declare the indictment was defective, declare that he is being
unlawfully confined, and have him released from imprisonment immediately.
Release from prison is not a remedy that is available in a 42 U.S.C. § 1983 action.
Preiser v. Rodriquez, 411 U.S. 475 (1973). “[H]abeas corpus is the exclusive remedy
for a state prisoner who challenges the fact or duration of his confinement and seeks
immediate or speedier release.” Heck v. Humphrey, 512 U.S. 477, 481 (1994).
Therefore, “declaratory or injunctive relief claims which are in the nature of habeas corpus
claims – i.e., claims which challenge the validity of the claimant’s conviction or sentence
and seek release – are simply not cognizable under § 1983.” Abella v. Rubino, 63 F.3d
1063, 1066 (11th Cir. 1995).
Eberhart maintains that the relief he seeks cannot be obtained “through the
ordinary course of federal or state post conviction habeas corpus . . . as such course of
action is . . . procedurally time barred.” (Doc. 1 at 23). Eberhart cannot avoid a time bar
simply by filing a 42 U.S.C. § 1983 action instead of a habeas. To determine otherwise
would render the one-year limitations period contained in the Antiterrorism and Effective
Death Penalty Act a nullity. In short, “habeas corpus is the exclusive remedy” for
Eberhart. Heck, 512 U. S. at 481.

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In conclusion, this action is DISMISSED WITHOUT PREJUDICE as to Ricky
Lamar Hogan and DIMISSED WITH PREJUDICE for failing “to state a claim upon which
relief may be granted” as to Michael Dino Eberhart. See 28 U.S.C. ' 1915A(b).
SO ORDERED, this 18th day of May, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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