McNeil v. Kirby et al

Filing 3

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint for failure to state a claim, DIRECT the Clerk of Court to CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 11/29/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 11/15/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LARRY DEWAYNE MCNEIL,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-137

v.
DUANE KIRBY; SHARLEEN C. GRAHAM;
MYRA MURPHY; JUSTIN SANDER;
JACKIE L. JOHNSON; and JAN KENNEDY,
all in their individual and official capacities,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is incarcerated at Johnson State Prison in Wrightsville, Georgia, filed the
above-captioned Complaint pursuant to 42 U.S.C. § 1983 contesting events allegedly occurring
in Jeff Davis County, Georgia. (Doc. 1.) Concurrently, Plaintiff filed a Motion for Leave to
Proceed in Forma Pauperis. (Doc. 2.) For the reasons which follow, the Court DENIES
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis.

For these same reasons, I

RECOMMEND that the Court DISMISS Plaintiff’s Complaint for failure to state a claim,
DIRECT the Clerk of Court to CLOSE this case, and DENY Plaintiff leave to proceed in forma
pauperis on appeal.
BACKGROUND
In his Complaint, Plaintiff asserts Defendant Duane Kirby “and other officials fabricated
an arrest warrant without establishing probable cause” to arrest Plaintiff on March 24, 2014.
(Doc. 1, p. 9.) Plaintiff contends Defendants, “in an ongoing conspiracy to commit fraud, did
knowingly and willingly conspired [sic] with Sharleen Graham to issue a warrant without

conducting an independent assessment as required under due process rights.” (Id.) Plaintiff
asserts prosecutors conspired with the other Defendants to manufacture evidence to use against
him during criminal proceedings. (Id. at p. 10.) Plaintiff maintains Defendants’ actions violated
his rights under the due process clause of the Fifth, Sixth, and Fourteenth Amendments, as well
as his right to be indicted by a grand jury and his right to a trial. As relief, Plaintiff seeks an
unspecified amount in compensatory and punitive damages and a declaration that Defendants
violated his rights. (Id. at p. 12.)
Plaintiff asserts he filed a cause of action in the Washington County Superior Court on
December 28, 2015, which deals with the same facts involved in this action. (Id. at pp. 1–2.) In
addition, Plaintiff previously brought a cause of action in this Court in which he named some of
the same people as defendants in that case as are named Defendants in this case. The Court
dismissed that case. (Id. (citing to McNeil v. Bohannon, et al., 2:16-cv-73 (S.D. Ga.) (dismissed
Aug. 12, 2016).)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under
28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the
prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his
assets and shows an inability to pay the filing fee and also includes a statement of the nature of
the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the
Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C.
§ 1915A, the Court must review a complaint in which a prisoner seeks redress from a
governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion

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thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted
or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “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)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

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In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”). The requisite review of Plaintiff’s
Amended Complaint raises several doctrines of law, which the Court discusses in turn.
DISCUSSION
I.

Plaintiff’s Section 1983 Claims
A conspiracy to violate another person’s constitutional rights gives rise to a Section 1983

action. “To establish a prima facie case of a [S]ection 1983 conspiracy, a plaintiff must show,
among other things, that defendants ‘reached an understanding to violate [his] rights.’” Rowe v.
City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2007) (quoting Strength v. Hubert, 854
F.2d 421, 425 (11th Cir. 1988)). A “plaintiff does not have to produce a ‘smoking gun’ to
establish the ‘understanding’ or ‘willful participation’ required to show a conspiracy, but must
show some evidence of agreement between the defendants.” Id. at 1283–84 (quoting Bendiburg
v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)). “[T]he linchpin for conspiracy is agreement.”
Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d 1112, 1122 (11th Cir. 1992).
“[M]erely string[ing] together” alleged acts of individuals is not sufficient to establish the
existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).

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Here, Plaintiff does not set forth any facts indicating Defendants reached an
understanding or agreement to violate his rights.

Instead, Plaintiff makes the conclusory

statement that Defendants conspired together to violate his rights by arresting him based on a
warrant he claims was not supported by probable cause. Even at the frivolity stage, Plaintiff fails
to set forth sufficient facts which would render his allegations “plausible”. Iqbal, 556 U.S. at
678. Accordingly, the Court should DISMISS Plaintiff’s Complaint.
II.

Whether Plaintiff can Proceed Pursuant to Section 1983
To state a claim for relief under Section 1983, Plaintiff must satisfy two elements. First,

he must allege that an act or omission deprived him “of some right, privilege, or immunity
secured by the Constitution or laws of the United States.”

Hale v. Tallapoosa Cty., 50

F.3d 1579, 1582 (11th Cir. 1995). Second, Plaintiff must allege that the act or omission was
committed by “a person acting under color of state law.” Id.
Plaintiff’s allegations are analyzed under the Standard of Review set forth above, and the
Court accepts Plaintiff’s non-conclusory factual allegations as true, as the Court must at this
stage. Even if Plaintiff had stated a plausible Section 1983 claim which could survive frivolity
review, the Court turns to whether Plaintiff could proceed with his claims pursuant to Section
1983.
In Heck v. Humphrey, 512 U.S. 477 (1994), a state prisoner filed a Section 1983 damages
action against the prosecutors and investigator in his criminal case for their actions which
resulted in his conviction. The United States Supreme Court analogized the plaintiff’s claim to a
common-law cause of action for malicious prosecution, which requires as an element of the
claim that the prior criminal proceeding was terminated in favor of the accused. 512 U.S. at 484.

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The Supreme Court reasoned:
We think the hoary principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments applies to § 1983
damages actions that necessarily require the plaintiff to prove the unlawfulness of
his conviction or confinement, just as it had always applied to actions for
malicious prosecution (footnote omitted).
We hold 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, (footnote omitted), 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. A claim for damages
bearing that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.
Id. at 486–87 (emphasis added).
Under Heck, a plaintiff who is attempting “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,” must make a showing that his
conviction, sentence, or other criminal judgment was reversed, expunged, declared invalid by an
appropriate state tribunal, or called into question in a federal court’s issuance of a writ of habeas
corpus. Id. If a plaintiff fails to make this showing, then he cannot bring an action under
Section 1983. Id. at 489. Furthermore, to the extent a plaintiff contends that a favorable ruling
on his claims would not invalidate his conviction, sentence, confinement, or other criminal
judgment, the burden is on the plaintiff to prove this contention in order for his claims to
proceed. Id. at 487. Although Heck involved a claim brought under 42 U.S.C. § 1983 for money
damages, Heck’s holding has been extended to claims seeking declaratory or injunctive relief as

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well as money damages. 1 See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005); Abella v.
Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995); see also Preiser v. Rodriguez, 411 U.S. 475, 500
(1973) (“[W]e hold today that when 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.”).
“Under this standard, it is not unusual for a § 1983 claim to be dismissed for failure to
satisfy Heck’s favorable termination requirement.” Desravines v. Fla. Dep’t of Fin. Servs.,
No. 6:11-CV-235-ORL-22, 2011 WL 2292180, at *3 (M.D. Fla. May 23, 2011), report and
recommendation adopted by No. 6:11-CV-235-ORL-22, 2011 WL 2222170 (M.D. Fla. June 8,
2011) (citing Gray v. Kinsey, No. 3:09–cv–324/LC/MD, 2009 WL 2634205, at *9 (N.D. Fla.
Aug. 25, 2009) (finding plaintiff’s claims barred by Heck’s favorable termination requirement
where plaintiff sought invalidation of his traffic conviction but failed to appeal the conviction in
state court)); Domotor v. Wennet, 630 F. Supp. 2d 1368, 1379 (S.D. Fla. 2009) (“allowing the
plaintiff to circumvent applicable state procedures and collaterally attack her convictions in
federal court is the precise situation that Heck seeks to preclude” because the plaintiff entered
into a plea agreement with knowledge of substantially all of the allegations that now form the
basis of a Section 1983 action for damages); St. Germain v. Isenhower, 98 F. Supp. 2d 1366,
1372 (S.D. Fla. 2000) (holding plaintiff’s convictions for the lesser-included offenses of false
imprisonment and misdemeanor battery did not constitute a favorable termination and thus
plaintiff’s § 1983 action was precluded by Heck ); see also Cooper v. Georgia, No. CV413-091,
2013 WL 2253214, at *2 (S.D. Ga. May 22, 2013), report and recommendation adopted by No.
1

As noted above, Plaintiff requests monetary damages in an unspecified amount and seeks declaratory
relief. (Doc. 1, p. 12.)
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CV413-091, 2013 WL 2660046 (S.D. Ga. June 11, 2013); Brown v. Renfroe, No. CV210-003,
2011 WL 902197, at *2 (S.D. Ga. Jan. 25, 2011), report and recommendation adopted by No.
CV210-003, 2011 WL 892359 (S.D. Ga. Mar. 9, 2011), aff’d sub nom., Brown v. Coleman, 439
F. App’x 794 (11th Cir. 2011).
In this case, Plaintiff has not shown that his conviction or sentence has been favorably
terminated. To the contrary, Plaintiff’s chief complaint is that he was unlawfully arrested.
Plaintiff remains incarcerated based on charges arising in Jeff Davis County and for which he
was arrested. http://www.dcor.state.ga.us/GDC/Offender/Query, last accessed Nov. 15, 2016.
Accordingly, Plaintiff’s claims are unquestionably precluded by the Heck decision.
Additional grounds support dismissal of Plaintiff’s putative Section 1983 claims.
Pursuant to the Rooker-Feldman doctrine, the Court is without jurisdiction over Plaintiff’s
claims, which essentially seek review of a state-court criminal prosecution against him. “The
Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and provides that,
as a general matter, federal district courts lack jurisdiction to review a final state court decision.”
McCorvey v. Weaver, 620 F. App’x 881, 882 (11th Cir. 2015). Nor under the Rooker-Feldman
doctrine may a federal court “decide federal issues that are raised in state proceedings and
‘inextricably intertwined’ with the state court’s judgment.” See Datz v. Kilgore, 51 F.3d 252,
253 (11th Cir. 1995) (quoting Staley v. Ledbetter, 837 F.2d 1016, 1018 (11th Cir. 1988)).
“Rooker-Feldman applies because, among the federal courts, Congress authorized only the
Supreme Court to reverse or modify a state court decision.” Helton v. Ramsay, 566 F. App’x
876, 877 (11th Cir. 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005)). Because Plaintiff, through this Section 1983 action, essentially asks this Court to

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invalidate his conviction obtained in the Jeff Davis County Superior Court or to otherwise alter
his sentence, this Court lacks jurisdiction over his claims. 2
For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
III.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).

2

Plaintiff admits to having a cause of action pending in the Washington County Superior Court relating
to the claims he sets forth in this cause of action. (Doc. 1, p. 1.)
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Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS this action for
failure to state a claim and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case. I further RECOMMEND that the Court DENY Plaintiff
leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 15th day of November,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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