Dasher v. Eunice et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint for failure to state a claim and DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case. It is further RECOMMENDED t hat the Court DENY Plaintiff leave to appeal in forma pauperis. 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. (Objections to R&R due by 10/27/2017). ORDER directing service of the REPORT AND RECOMMEDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/13/2017. (ca)

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

DANNY DASHAUN DASHER,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-48

v.
ROBERT EUNICE; TONYA CARTER; and
THE APPLING COUNTY SHERIFF’S
OFFICE,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at the Appling County Jail in Baxley, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) Concurrently, Plaintiff also 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. (Doc. 2.) For these same
reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint for failure to state a claim
and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this
case. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in forma
pauperis.
BACKGROUND
In his Complaint, Plaintiff states he “need[s] help dealing with the situation [he is]
currently in” at the Jail. (Doc. 1, p. 5.) Plaintiff contends he was arrested without a warrant and
has been at the Appling County Jail for over two years’ time. Plaintiff asserts he has received no

assistance from the justice system and “might not ever go home[.]” (Id.) Plaintiff names as
Defendants Robert Eunice, Tonya Carter, and the Appling County Sheriff’s Office.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. 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, 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 thereof, that is frivolous, 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).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. 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)).

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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)).
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[.]”) (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.”).

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DISCUSSION
I.

Dismissal of Claims Against Defendants Eunice and Carter
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two

elements. First, a plaintiff 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, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. Further, Section
1983 liability must be based on something more than a defendant’s supervisory position or a
theory of respondeat superior. 1 Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009); Braddy
v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A supervisor may be
liable only through personal participation in the alleged constitutional violation or when there is
a causal connection between the supervisor’s conduct and the alleged violations. Id. at 802. “To
state a claim against a supervisory defendant, the plaintiff must allege (1) the supervisor’s
personal involvement in the violation of his constitutional rights, (2) the existence of a custom or
policy that resulted in deliberate indifference to the plaintiff’s constitutional rights, (3) facts
supporting an inference that the supervisor directed the unlawful action or knowingly failed to
prevent it, or (4) a history of widespread abuse that put the supervisor on notice of an alleged
deprivation that he then failed to correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
It is unclear whether Defendants Eunice and Carter hold any supervisory positions at the
Appling County Jail. To the extent Plaintiff seeks to hold Defendants Eunice and Carter liable
solely based on their putative supervisory positions, he cannot do so. Plaintiff fails to present
any facts indicating there is a causal connection between the actions of Defendants Eunice and
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The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).
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Carter and the alleged violation of Plaintiff’s constitutional rights. Plaintiff does not allege that
Defendants Eunice and Carter were personally involved in the conditions that he complains of or
that the conditions resulted from some custom or policy these Defendants promulgated or
maintained. Plaintiff also fails to plausibly allege that Defendants Eunice or Carter directed the
allegedly unlawful conditions or ignored a widespread history of abuse in this regard. In fact,
Plaintiff fails to make even conclusory allegations that Defendants Eunice or Carter were aware
of or were personally responsible for the alleged violations of Plaintiff’s constitutional rights.
Accordingly, the Court should DISMISS Plaintiff’s claims against Defendants Eunice and Carter
and DISMISS Plaintiff’s claims against these Defendants based on his failure to state a claim.
II.

Claims Against the Appling County Sheriff’s Office
As stated above, in order to state a claim for relief under Section 1983, a plaintiff must

satisfy two elements. First, a plaintiff 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, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. While local
governments qualify as “persons” under Section 1983, local police departments are generally not
considered legal entities subject to suit. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)
(“Sheriff’s departments and police departments are not usually considered legal entities subject
to suit[.]”) (citations omitted); Williams v. Chatham Cty. Sherriff’s Complex, Case No. 4:07-cv68, 2007 WL 2345243 (S.D. Ga. Aug. 14, 2007) (“The county jail, however, has no independent
legal identity and therefore is not an entity that is subject to suit under Section 1983.”); Shelby v.
Atlanta, 578 F. Supp. 1368, 1370 (N.D. Ga. 1984) (dismissing the Atlanta Police Department for
not being a proper Section 1983 defendant). Consequently, the Appling County Sheriff’s Office

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is not a viable Defendant in this case. Therefore, the Court should DISMISS Plaintiff’s claims
against Defendant Appling County Sheriff’s Office because it is not a proper party Defendant in
a Section 1983 action.
III.

Dismissal Pursuant to Heck v. Humphrey and the Rooker-Feldman Doctrine
The allegations contained in Plaintiff’s Complaint appear to center around his ongoing

criminal proceedings in Appling County, Georgia. There is no indication that Plaintiff has been
convicted, much less whether that conviction has been reversed, expunged, invalidated, called
into question by a federal court’s issuance of a writ of habeas corpus, or otherwise overturned.
(Doc. 1.) Consequently, this Court is precluded from reviewing his claims by the decision in
Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, 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. 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

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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
well as money damages. 2 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.”).

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Plaintiff requests as relief that the Court “come and investigate these folks down here. They don’t have
anyone to make them follow the law and the procedures.” (Doc. 1, p. 6.)
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“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.
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 his sentence has been favorably
terminated. To the contrary, Plaintiff does not even allege that he has been convicted of the

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crimes for which he has been charged. Plaintiff seeks relief that is injunctive or remedial in
nature. Accordingly, the Heck decision unquestionably precludes Plaintiff’s claims.
Even if Plaintiff is not challenging a conviction, he is at least challenging his post-arrest
confinement. However, Heck is not only limited to claims challenging the validity of criminal
convictions. It also applies to detentions absent convictions. See Cohen v. Clemens, 321 F.
App’x 739, 741 (10th Cir. 2009) (In the immigration context, “Heck bar[red the plaintiff’s]
claims for damages because success on those claims would necessarily imply the invalidity of
[his] detention.”); Edwards v. Balisok, 520 U .S. 641 (1997) (applying Heck to a Section 1983
claim challenging procedures used to deprive a prison inmate of good time credits); Huftile v.
Miccio-Fonseca, 410 F.3d 1136, 1137 (9th Cir. 2005) (applying Heck to a Section 1983 claim
challenging civil commitment under California’s Sexually Violent Predators Act); Hamilton v.
Lyons, 74 F.3d 99, 102–03 (5th Cir. 1996) (applying Heck to a Section 1983 claim challenging
the coercive nature of a pretrial detainee’s confinement prior to giving a statement regarding
pending charges). Thus, to the extent Plaintiff challenges the fact of his present confinement
irrespective of any underlying convictions, Heck precludes his claims.
For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
IV.

Dismissal Under Younger Abstention
Additionally, insofar as Plaintiff is asking this Court to intervene in the state case’s

ongoing proceedings, the Younger abstention doctrine bars Plaintiff’s Complaint. Under the
Younger abstention doctrine, a federal court must abstain from exercising jurisdiction over a case
where there is an ongoing state action. See Younger v. Harris, 401 U.S. 37, 43–45 (1971).
While Younger involved a federal suit for injunctive relief of the ongoing state proceedings, the
Eleventh Circuit Court of Appeals has also indicated that Younger abstention extends to cases

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involving Section 1983 claims for monetary damages. See Doby v. Strength, 758 F.2d 1405,
1405–06 (11th Cir. 1985) (requiring Younger abstention where plaintiff raised Fourth
Amendment Section 1983 damages claims related to ongoing state criminal proceedings); see
also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (intervention in ongoing state court
proceedings is not appropriate as a Section 1983 cause of action when there is ample opportunity
to raise constitutional challenges in those state court proceedings).
Here, because the status of Plaintiff’s indictment is unknown and potentially ongoing,
any ruling by this Court as to the constitutionality of Defendants’ actions could substantially
interfere with the results reached in the state court proceeding. See 31 Foster Children v. Bush,
329 F.3d 1255, 1276 (11th Cir. 2003) (noting the importance of “whether the federal proceeding
will interfere with an ongoing state court proceeding” in determining whether Younger
abstention is appropriate). Moreover, Plaintiff cannot demonstrate the lack of adequate remedy
at law needed to avoid Younger abstention because he is free to allege the same violations or
inaction by Defendants in his state criminal proceedings. See Boyd v. Georgia, No. CV 112-042,
2012 WL 2862157, at *2 (S.D. Ga. May 14, 2012), report and recommendation adopted, No.
CV 112-042, 2012 WL 2862123 (S.D. Ga. July 11, 2012), aff’d, 512 F. App’x 915 (11th Cir.
2013) (concluding that plaintiff had an adequate remedy at law with respect to constitutional
claims that he could bring in his pending state criminal case). In addition, Plaintiff’s allegations
provide no indication of irreparable injury, and the hardships associated with having to defend
against a criminal prosecution do not establish it as a matter of law. Younger, 401 U.S. at 47
(“Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend
against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the
special legal sense of that term.”).

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For these additional reasons, the Court should DISMISS Plaintiff’s claims in their
entirety.
V.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal 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). 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).
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.

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A certificate of appealability is not required in this Section 1983 action.
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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis. I RECOMMEND the Court DISMISS Plaintiff’s Complaint for failure to
state a claim and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and
CLOSE this case. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in
forma pauperis.
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
judgment entered by or at the direction of a District Judge.

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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 13th day of October,
2017.

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

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