GLENN v. BLUE et al

Filing 8

ORDER DISMISSING CASE as Frivolous. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 10/24/17. (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DESMOND MARVE GLENN,

:
:
Plaintiff,
:
:
VS.
:
:
Chief BLUE, et al.,
:
:
Defendants.
:
_________________________________:

No. 5:17-cv-00275-CAR-MSH

ORDER OF DISMISSAL
This case is currently before the Court for preliminary screening as required by the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Desmond
Marve Glenn, an inmate confined at the Coastal State Prison in Garden City, Georgia, filed
the above-captioned case seeking monetary damages.1 Compl., ECF No. 1. Along with
his Complaint, Plaintiff filed a motion for leave to proceed without prepayment of the
filing fee. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. Plaintiff was
previously granted leave to proceed in forma pauperis and was ordered to pay an initial
partial filing fee. Order, Sept. 6, 2017, ECF No. 7. Plaintiff has now paid the initial
partial filing fee, and thus, his Complaint is ripe for review.
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In addition to monetary damages, Plaintiff asks for reconsideration of the proceedings in
his criminal case. Compl. 7, ECF No. 1. To the extent that Plaintiff seeks to challenge
his criminal conviction, he must file a separate petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state
prisoner is challenging the very fact or duration of his physical imprisonment, and the relief
he seeks is a determination that he is entitled to immediate release or a speedier release
from that imprisonment, his sole federal remedy is a writ of habeas corpus.”); see also
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

After due consideration, the Court finds that Plaintiff’s complaint fails to state a
non-frivolous claim for relief.

The complaint is thus DISMISSED WITHOUT

PREJUDICE pursuant to § 1915A(b).
I.

Motion to Proceed In Forma Pauperis

Any court of the United States may authorize the commencement a civil action,
without prepayment of the required filing (in forma pauperis), if the plaintiff shows that he
is indigent and financially unable to pay the court’s filing fee. See 28 U.S.C. § 1915(a).
Pursuant to this provision, Plaintiff moved for leave to proceed without prepayment of the
$350.00 filing fee, and his motion was granted. Order, Sept. 6, 2017. At that same time,
Plaintiff was directed to pay an initial partial filing fee of $38.63, see id., which he has now
paid. Plaintiff is still obligated to pay the full balance of the filing fee, in installments, as
set forth in § 1915(b) and explained below.

The district court’s filing fee is not

refundable, regardless of the outcome of the case, and must therefore be paid in full even if
the plaintiff’s complaint is dismissed prior to service.
For this reason, the CLERK is DIRECTED to forward a copy of this Order to the
business manager of the facility in which Plaintiff is incarcerated so that withdrawals from
his account may commence as payment towards the filing fee.
A. Directions to Plaintiff’s Custodian
Because Plaintiff has been granted leave to proceed in forma pauperis in the
above-captioned case, it is hereby ORDERED that the warden of the institution wherein
Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any
successor custodians, each month cause to be remitted to the CLERK of this Court twenty
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percent (20%) of the preceding month’s income credited to Plaintiff’s trust account at said
institution until the $350.00 filing fee has been paid in full. The funds shall be collected
and withheld by the prison account custodian who shall, on a monthly basis, forward the
amount collected as payment towards the filing fee, provided the amount in the prisoner’s
account exceeds $10.00. The custodian’s collection of payments shall continue until the
entire fee has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the
granting of judgment against him prior to the collection of the full filing fee.
B. Plaintiff’s Obligations Upon Release
In the event Plaintiff is hereafter released from the custody of the State of Georgia or
any county thereof, he remains obligated to continue making monthly payments to the
CLERK toward the balance due until said amount has been paid in full. Collection from
Plaintiff of any balance due on the filing fee by any means permitted by law is hereby
authorized in the event Plaintiff is released from custody and fails to remit payments.
Plaintiff’s complaint may be dismissed if he is able to make payments but fails to do so.
II.

Authority & Standard for Preliminary Screening

The Court is now obligated to conduct a preliminary review of Plaintiff’s complaint.
See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) & 28 U.S.C. §
1915(e) (regarding in forma pauperis proceedings). When performing this review, 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 pleading are also “held to a less
stringent standard that pleadings drafted by attorneys,” and thus, pro se claims are
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
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1998). Still, the Court must dismiss a prisoner complaint if it “(1) 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).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v.
Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The
Court may dismiss claims that are based on “indisputably meritless legal” theories and
“claims whose factual contentions are clearly baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not include “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 factual allegations in a complaint “must be enough to raise a right to relief above the
speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of
action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the
complaint must allege enough facts “to raise a reasonable expectation that discovery will
reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
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 Cty, 50 F.3d 1579, 1582 (11th Cir. 1995).
If a litigant cannot satisfy these requirements or fails to provide factual allegations in
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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).
III.

Plaintiff’s Complaint

In his Complaint, Plaintiff asserts that property was seized from his mother’s home
during an illegal search. Compl. 5, ECF No. 1. Plaintiff was then criminally charged
based on the illegally seized property. Id. Ultimately, Plaintiff pled guilty to certain
charges on the advice of his court appointed counsel. Id. at 6.
It is well settled that a prisoner cannot challenge the correctness of his confinement
under 42 U.S.C. § 1983. Instead, “habeas corpus is the exclusive remedy for a state
prisoner who challenges the fact or duration of his confinement.” See Heck v. Humphrey,
512 U.S. 477, 486-87 (1994). Moreover, a prisoner cannot bring a § 1983 action for
damages that would invalidate a sentence or conviction unless the sentence or conviction in
question has previously been invalidated. Id. at 487. Thus, if such an action is brought
prior to invalidation of the conviction or sentence challenged, it must be dismissed as
premature. Id. at 487-89.
In this case, Plaintiff alleges that his conviction is unconstitutional because it was
based on an illegal search and seizure of property. Compl. 5-6, ECF No. 1. Plaintiff’s
factual allegations in no way suggest, however, that his conviction has been declared
unlawful by a state court, executive order, state tribunal, or writ of habeas corpus. See id.
Thus, Plaintiff’s claims are premature under Heck. Moreover, to the extent that Plaintiff
asserts that his mother’s right to privacy was violated, Plaintiff lacks standing to assert a
Fourth Amendment claim on his mother’s behalf. See Alderman v. United States, 394
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U.S. 165, 174 (1969) (explaining that “Fourth Amendment rights are personal rights which
. . . may not be vicariously asserted”).
Accordingly, the Court finds that Plaintiff’s claims have no arguable merit, and his
complaint is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b).
SO ORDERED, this 24th day of October, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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