MCCRAY v. SMITH
Filing
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ORDER dismissing Recast Complaint without prejudice. Ordered by US DISTRICT JUDGE HUGH LAWSON on 1/18/2018. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
ROBERT MCCRAY,
:
:
Plaintiff,
:
VS.
:
:
CATHREN SMITH,
:
:
Defendant.
:
________________________________ :
NO. 7:17-CV-00069-HL-TQL
ORDER
Presently pending before the Court is the Recast Complaint of pro se Plaintiff
Robert McCray, an inmate most recently confined at the Thomas County Jail in
Thomasville, Georgia. Plaintiff’s claims are now ripe for preliminary screening pursuant
to 28 U.S.C. § 1915A(a) and § 1915(e). After conducting this review, the Court finds
that Plaintiff has failed to state a viable claim upon which relief may be granted.
Plaintiff’s Recast Complaint is accordingly DISMISSED without prejudice. 1
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The Court also notes that Plaintiff has failed to pay the initial partial filing fee that was
previously ordered. On July 6, 2017, the United States Magistrate Judge granted
Plaintiff’s motion to proceed in forma pauperis and ordered him to pay an initial filing
fee of $79.07 within twenty-one (21) days of the date of the order. Plaintiff was advised
that if circumstances had changed and he was unable to pay the filing fee, he could
alternatively file a renewed motion to proceed in forma pauperis explaining the change in
circumstances to the Court within twenty-one (21) days. Plaintiff was warned that failure
to fully and timely comply with the Court’s orders could result in the dismissal of his
Complaint. Order, July 6, 2017, ECF No. 6. The dismissal of Plaintiff’s claims could
also be appropriate for this reason. See Fed. R. Civ. P. 41; see also Brown v. Tallahassee
Police Dep't, 205 F. App'x 802, 802 (11th Cir. 2006) (per curiam) (“The court may
dismiss an action sua sponte under Rule 41(b) for failure to prosecute or failure to obey a
court order.”) (citing Lopez v. Aransas Cnty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th
Cir.1978)).
PRELIMINARY SCREENING
I.
Standard of Review
In accordance with the Prison Litigation Reform Act (“PLRA”), the district courts
are obligated to conduct a preliminary screening of every complaint filed by a prisoner
who seeks redress from a government entity, official, or employee. See 28 U.S.C. §
1915A(a). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is
proceeding IFP. Both statutes apply in this case, and the standard of review is the same.
When conducting preliminary screening, the Court must accept all factual allegations in
the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes
v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this
case, are “held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Id. (internal quotation marks omitted). 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
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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 Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995).
If a litigant cannot satisfy these requirements or fails to provide factual allegations in
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).
B. Factual Allegations and Plaintiff’s Claims
The only named Defendant in this case is Cathren Smith, Plaintiff’s former public
defender. Recast Compl. 5, ECF No. 7. Plaintiff alleges that Defendant Smith is now a
prosecutor and that she is “holding [Plaintiff’s] past against [him]” because he “got away
wit[h] too much in the past.” Id. Plaintiff states that in 2010, Defendant Smith “forced”
him “to take 10 years probation” and would not “sign off” on releasing Plaintiff from
probation. Id. On May 22, 2016, Plaintiff alleges that Defendant Smith “made” Plaintiff
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“take a 5 year plea” and told Plaintiff that if he did not take the plea deal she would “take
[him] to probation court snatch all my pappers [sic] left and . . . try every charge one by
one and give [him] the max on each one of them charges.” Id. Plaintiff states that these
actions show that Defendant Smith has a “personal grudge against” Plaintiff.
Id.
Plaintiff alleges that Defendant’s conduct violated his civil rights, and as a result he seeks
“conviction over turn, money back, an[d] compensation for pain and suffering.” Id. at 6. 2
Construing Plaintiff’s allegations liberally, as the Court must at this stage, it
appears Plaintiff is claiming that Defendant Smith maliciously prosecuted Plaintiff. The
Eleventh Circuit recognizes that a malicious prosecution can be a violation of the Fourth
Amendment cognizable under 42 U.S.C. § 1983. See, e.g., Wood v. Kesler, 323 F.3d
872, 881 (11th Cir. 2003); see also Carter v. Gore, 557 F. App’x 904, 906 (11th Cir.
2014) (per curiam) (noting that a claim for malicious prosecution “is the constitutional
tort available to people who have been wrongfully arrested pursuant to legal process”).
Plaintiff’s malicious prosecution claims fail, however, for at least two independent
reasons.
First, to state a claim for malicious prosecution in the Eleventh Circuit, a plaintiff
must show a violation of his Fourth Amendment right to be free from unreasonable
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Plaintiff cannot obtain a dismissal of pending charges or speedier release through a §
1983 action. See Preiser v. Rodriguez, 411 U.S. 475, 487, 489 (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). Thus, to the extent Plaintiff seeks his release from prison as a remedy
for the constitutional violations he alleges, such relief is not available in a Section 1983
case.
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seizures as well as: “(1) a criminal prosecution instituted or continued by the present
defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff
accused’s favor; and (4) caused damage to the plaintiff accused.” Wood, 323 F.3d at 882.
In this case, Plaintiff does not allege that any criminal prosecution against him has
terminated in his favor. Because Plaintiff has failed to allege an essential element of his
claim, Plaintiff’s malicious prosecution claims are subject to dismissal. 3
In addition, Defendant Smith is entitled to immunity in this case. A prosecutor is
generally “entitled to absolute immunity for acts undertaken . . . in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of [her] role
as an advocate for the State.” Mastroianni v. Bowers, 173 F.3d 1363, 1366 (11th Cir.
1999) (internal quotation marks omitted). These acts include, but are not limited to,
“appearances in judicial proceedings, including prosecutorial conduct before grand juries,
statements made during trial, examination of witnesses, and presentation of evidence in
support of a search warrant during a probable cause hearing.” Rehberg v. Paulk, 611
F.3d 828, 837-38 (11th Cir. 2010). In this case, Plaintiff has alleged only that Defendant
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In addition, to the extent Plaintiff’s criminal prosecution is ongoing, the doctrine of
Younger v. Harris, 401 U.S. 37 (1971), would bar Plaintiff’s claims. The Younger
doctrine prevents the Court intervening with pending state criminal proceedings when the
party requesting federal intervention has an adequate remedy at law and will not suffer
irreparable injury. Id. at 53; see also Doby v. Strength, 758 F.2d 1405, 1406 (11th Cir.
1985) (per curiam) (extending Younger to § 1983 actions for money damages). Dismissal
of Plaintiff’s claims would also likely be appropriate under Younger, given the facts
alleged by Plaintiff. See, e.g., Boyd v. Farrin, 575 F. App’x 517, 519-20 (5th Cir. 2014)
(per curiam) (collecting cases and noting that claims for injunctive relief are properly
dismissed when Younger applies, and a stay of any associated damages claim is “not
required where the district court determines that the claim for damages is frivolous under
28 U.S.C. § 1915”)).
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Smith decided to prosecute Plaintiff for the crimes with which he had been charged. “A
prosecutor’s decision to bring charges against a person, so long as the prosecutor is acting
within the scope and territorial jurisdiction of his office, is immune from an action for
damages under § 1983.” Elder v. Athens-Clarke Cnty., 54 F.2d 694, 695 (11th Cir.
1995); see also Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir. 1984) (prosecutor
is entitled to immunity even when she knowingly uses perjured testimony, files an
information without an investigation, files charges without jurisdiction, files a baseless
detainer, or threatens a criminal defendant with further prosecution, among other things).
Plaintiff’s single, conclusory statement that Defendant Smith harbored a “grudge” against
him does not demonstrate that Defendant Smith’s conduct fell outside her role as an
advocate for the State or that she acted outside the territorial jurisdiction of her office.
Defendant Smith is therefore also entitled to prosecutorial immunity, and Plaintiff’s
claims against her are subject to dismissal for this reason.
III.
Conclusion
For the foregoing reasons, Plaintiff’s claims must be DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915A and § 1915(e) because they fail to state a claim
upon which relief may be granted and/or seek monetary relief against a defendant who is
immune from such relief.
SO ORDERED, this 18th day of January, 2018.
s/ Hugh Lawson_____________________
HUGH LAWSON, SENIOR JUDGE
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