Eckerd v. Cannon et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, CLOSE this action, and DENY Plaintiff leave to appeal in forma pauperis. The Court ORDERS any party seeking to object to this Report and Recomme ndation 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 10/24/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/10/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
ANDREW WILLIAM ECKERD,
CIVIL ACTION NO.: 2:17-cv-100
OFFICER JENNIFER STEELE CANNON,
and JUDGE STEPHEN D. KELLEY,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Hays State Prison located in Trion, Georgia, submitted a Complaint
pursuant to 42 U.S.C. § 1983. (Doc. 1.) For the reasons which follow, the Court DENIES
Plaintiff’s Motion to Proceed in Forma Pauperis.
Further, because Plaintiff’s
Complaint is frivolous and fails to state a claim, I RECOMMEND that the Court DISMISS
Plaintiff’s Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal. Additionally, I RECOMMEND the Court DENY Plaintiff leave to
appeal in forma pauperis.
In his Complaint, Plaintiff complains about his arrest and subsequent detention due to a
probation violation warrant and resulting revocation. (Doc. 1, pp. 3–4; doc. 1-2.) Though
Plaintiff’s Complaint is not the picture of clarity, it appears he alleges that Judge Kelley issued
The Clerk of Court mistakenly included Gregory C. Dozier, the Commissioner of the Georgia
Department of Corrections, as a Defendant on the docket of this case. Plaintiff did not name
Commissioner Dozier as a Defendant. He only listed Dozier as a Defendant from a prior lawsuit. (Doc.
1, p. 1.) Thus, the Clerk of Court is DIRECTED to TERMINATE Gregory Dozier as a Defendant in
an order on June 17, 2015, for him to be detained at the Probation Detention Center (“PDC”) for
60–120 days followed by twelve months of treatment. (Id.) He contends that he was released
from the PDC on August 15, 2015. (Id.) On September 6, 2015, Defendant Officer Jennifer
Cannon swore a false warrant for Plaintiff’s arrest for his failure to complete a condition of
probation which Judge Kelley issued.
The Clinch County Sherriff’s Office arrested
Plaintiff on that warrant on October 30, 2015. (Id.) He was then detained in the Clinch County
Jail and the Glynn County Jail at least until his probation revocation hearing on December 16,
2015. (Id.) Plaintiff requests, among other things, compensatory damages, declaratory relief,
and punitive damages. (Doc. 1, pp. 4–5.)
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 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).
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)).
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[.]”) (citation 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.”).
Heck v. Humphrey and the Rooker-Feldman Doctrine
Plaintiff’s Complaint centers on his arrest on a probation violation warrant and
subsequent detention. He does not give the Court any information regarding the status of
probation violation case and whether it is still pending. While it appears his probation was
revoked, he certainly offers no facts that the revocation 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 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 be
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 has 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 well as
money damages. 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.”); 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-CV235-ORL-22, 2011 WL 2222170 (M.D. Fla. June 8, 2011) (citing Gray v. Kinsey, No. 3:09-cv324/LC/MD, 2009 WL 2634205, at *9 (N.D. Fla. Aug. 25, 2009) (“Under this standard, it is not
unusual for a § 1983 claim to be dismissed for failure to satisfy Heck’s favorable termination
requirement.”); 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” when plaintiff entered into a
plea agreement with knowledge of substantially all of the allegations that now form the basis of a
§ 1983 action for damages); 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 favorable termination for his conviction or sentence.
In fact, Plaintiff does not even indicate whether he has been convicted or what sentence he may
have received. His chief complaint is that Officer Cannon was untruthful in her application for
an arrest warrant and that Judge Kelley should have known that she was untruthful. (Docs. 1, 11.) 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 after Judge Kelley issued the warrant. However, Heck is not only limited to claims
challenging the validity of criminal convictions. It also applies to detentions absent convictions
and thus bars Plaintiff’s claims. 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).
Additional grounds also support dismissal; to the extent Plaintiff wants the Court to
review any underlying criminal conviction, his claims are precluded by the Rooker-Feldman
doctrine. Pursuant to Rooker-Feldman, the Court is without jurisdiction over Plaintiff’s claims,
which essentially seek review of a state-court criminal charge against him. “The RookerFeldman 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, No. 15-10470, 2015 WL 5751756, at *1 (11th Cir. Oct. 2, 2015).
“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
invalidate his indictment and conviction by the Appling County Superior Court, this Court lacks
jurisdiction over his claims.
For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
Younger Abstention Doctrine
Additionally, insofar as Plaintiff is asking this Court to intervene in the State’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 has also indicated that the Younger abstention extends to cases 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 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.”).
For these additional, independent reasons, the Court should DISMISS Plaintiff’s claims
in their entirety.
Judicial immunity also bars Plaintiff’s claims against Judge Kelley. Congress did not
abrogate the doctrine of judicial immunity when it enacted Section 1983. Judicial immunity is
an absolute immunity, and it applies even when a judge acts maliciously. Bolin v. Story, 225
F.3d 1234, 1239 (11th Cir. 2000) (“Judges are entitled to absolute judicial immunity from
damages for those acts taken while they are acting in their judicial capacity unless they acted in
the clear absence of all jurisdiction.”); Stump v. Sparkman, 435 U.S. 349, 356 (1978) (holding
judicial immunity doctrine applies in Section 1983 actions).
Absolute immunity not only
protects against liability but also against a case going to trial at all. Harris v. Deveaux, 780 F.2d
911, 914 (11th Cir. 1986) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). To determine
whether a judge is entitled to absolute immunity from money damages under Section 1983, a
two-part test was established in Stump: 1) whether the judge dealt with the plaintiff in a judicial
capacity; and 2) whether the judge acted in the “clear absence of all jurisdiction.” Id. (quoting
Stump, 435 U.S. at 357). The second prong of this test is “only satisfied if a judge completely
lacks subject matter jurisdiction.” Id. at 916. Plaintiff clearly complains about actions taken by
Judge Kelley in his judicial capacity, but Plaintiff fails to make a plausible claim that Judge
Kelley acted in the clear absence of jurisdiction. Thus, the Court should DISMISS Plaintiff’s
putative Section 1983 claims against Judge Kelley under the doctrine of judicial immunity.
Federal Rule of Civil Procedure 8(a)(2)
Even if the Court could entertain Plaintiff’s claims and Defendants were not immune
from his claims, his Complaint would still fail to meet the pleading standards of the Federal
Rules of Civil Procedure. As stated above, Rule 8(a)(2) requires a pleading to contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). While a plaintiff need not provide detailed factual allegations, a complaint is insufficient
if it offers no more than “labels and conclusions,” or “an unadorned, the defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). Here, even construing
Plaintiff’s Complaint liberally, he fails to state a claim against Defendants. For instance, while
he claims that Defendant Cannon made false statements against him and the Judge Kelley should
have known those statements were false, he doesn’t even provide the contents of those
statements. Such bare legal conclusions will not suffice. Iqbal, 556 U.S. at 679. Accordingly,
Plaintiff fails to state a claim upon which relief can be granted against Defendants.
Anderson v. Fulton Cty. Gov’t, 485 F. App’x 394 (11th Cir. 2012) (dismissal proper where
plaintiff failed to describe any specific allegations against defendant).
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2
Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
A certificate of appealability is not required in this Section 1983 action.
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take 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).
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.
For the numerous reasons set forth above, I RECOMMEND that the Court DISMISS
Plaintiff’s Complaint, CLOSE this action, and DENY Plaintiff leave to appeal in forma
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. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 10th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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