Eckerd v. Cannon et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 4 Amended Complaint based on his failure to state a claim, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff in forma pauperis status 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 10/30/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/16/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
ANDREW WILLIAM ECKERD,
CIVIL ACTION NO.: 2:17-cv-108
JENNIFER STEELE CANNON; and
STEPHEN D. KELLEY,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Hays State Prison in Trion, Georgia, filed a
Complaint, as amended, pursuant to 42 U.S.C. § 1983 contesting certain events which allegedly
occurred in Brunswick, Georgia. (Docs. 1, 4.) Plaintiff also filed Motions for Leave to Proceed
in Forma Pauperis. (Docs. 2, 5.) For the reasons set forth below, the Court DENIES Plaintiff’s
Motions. For these same reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint
based on his failure to state a claim, DIRECT the Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal, and DENY Plaintiff in forma pauperis status on appeal.
In his Amended Complaint 1, Plaintiff contends Defendant Cannon, a state probation
officer, issued a “sworn to and subscribed” warrant for his arrest, which she knew or should have
Plaintiff’s Amended Complaint supersedes his original Complaint. Wimberly v. Broome, No. 6:15CV-23, 2016 WL 3264346, at *1 (S.D. Ga. Mar. 29, 2016), report and recommendation adopted, No.
6:15-CV-23, 2016 WL 3360521 (S.D. Ga. June 14, 2016) (citing Malowney v. Fed. Collection Deposit
Grp., 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) (“An amended complaint supersedes an original
complaint.”), and Varnes v. Local 91, Glass Bottle Blowers Ass’n, 614 F.2d 1365, 1370 n.6 (11th Cir.
1982) (“As a general rule, an amended complaint supersedes and replaces the original complaint unless
the amendment specifically refers to or adopts the earlier pleading.”)).
known contained false statements. (Doc. 4, p. 5.) In addition, Plaintiff contends Defendant
Kelley, a Superior Court judge, “authorized” this warrant. As a result of this warrant, Plaintiff
maintains he was unlawfully arrested. (Id.) Plaintiff seeks monetary damages in excess of
$4,500.00 and declaratory relief. (Id. at p. 6.)
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)).
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.”).
Judicial immunity bars Plaintiff’s claims against Defendant 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 the actions of Defendant Kelley in his capacity as a
judicial official in a case pending before him in which Plaintiff was a named party.
Nevertheless, Plaintiff fails to make a plausible claim that Defendant Kelley acted in the clear
absence of jurisdiction. Consequently, the Court should DISMISS Plaintiff’s Section 1983
claims against Defendant Kelley based on judicial immunity principles.
Dismissal Pursuant to Heck v. Humphrey and the Rooker-Feldman Doctrine
The allegations contained in Plaintiff’s Amended Complaint center around criminal
proceedings in Glynn County, Georgia. It appears from the docket of this case that Plaintiff has
either been convicted of a separate offense or had his probation revoked in a previous criminal
proceeding stemming from these criminal proceedings. However, there is nothing before the
Court indicating that these proceedings have been reversed, expunged, invalidated, called into
question by a federal court’s issuance of a writ of habeas corpus, or otherwise overturned.
(Docs. 1, 4.) 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 be terminated in favor of the accused. 512 U.S. at 484. The Supreme Court
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
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
“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.,
Plaintiff seeks monetary damages and declaratory relief. (Doc. 4, p. 6.)
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 criminal proceedings have been favorably
terminated. To the contrary, Plaintiff only alleges he was falsely arrested. Plaintiff seeks
declaratory relief and monetary compensation. 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, Heck bars Plaintiff’s claims for this additional reason.
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 state-court criminal proceedings decided 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
invalidate his conviction obtained in Glynn County, Georgia, this Court lacks jurisdiction over
Accordingly, the Court should DISMISS Plaintiff’s claims in their entirety.
Plaintiff’s Complaint is Duplicative
Though Plaintiff does not disclose this information in his Complaint, he previously filed a
cause of action in Case Number 2:17-cv-100, Eckerd v. Cannon, et al., on August 28, 2017.
Compl., Eckerd v. Cannon, et al., 2:17-cv-100 (S.D. Ga. Aug. 28, 2017), ECF No. 1. In his
complaint in Case Number 2:17-cv-100, Plaintiff made the same assertions as he does in the
instant Complaint. Id.
“It is well settled that a plaintiff may not file duplicative complaints in order to expand
[his] legal rights.” Vanover v. NCO Fin. Serv., Inc., 857 F.3d 833, 841 (11th Cir. 2017)
(quotations and citations omitted); see also Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.
2000) (“The power to dismiss a duplicative lawsuit is meant to foster judicial economy and the
‘comprehensive disposition of litigation.’”) (citing Kerotest Mfg. Co. v. C-O-Two Fire
Equipment Co., 342 U.S. 180, 183 (1952)); Oliney v. Gardner, 771 F.2d 856, 859 (5th Cir. 1985)
(“When a plaintiff files a second complaint alleging the same cause of action as a prior, pending,
related action, the second complaint may be dismissed.”) (emphasis in original); Walton v. Eaton
Corp., 563 F.2d 66, 70 (3d Cir. 1977) (“[I]t is clear that [plaintiff] had no right to maintain two
separate actions involving the same subject matter at the same time in the same court and against
the same defendant.”).
As Plaintiff already filed a complaint on a previous occasion in which he made the same
assertions as he does in his Complaint in this case, the Court should DISMISS Plaintiff’s
Complaint as duplicative. 3
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4
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).
I recommended Plaintiff’s complaint be dismissed as frivolous and for failing to state a claim in Case
Number 2:17-cv-100. R. & R., Eckerd v. Cannon, et al., 2:17-cv-100 (S.D. Ga. Oct. 10, 2017), ECF
No. 6. That recommendation is pending before the Court.
A certificate of appealability is not required in this Section 1983 action.
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.
The Court DENIES Plaintiff’s Motions for Leave to Proceed in Forma Pauperis.
(Docs. 2, 5.) I RECOMMEND the Court DISMISS Plaintiff’s Complaint, as amended, for
failure to state a claim. I also RECOMMEND the Court DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal and 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. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 16th day of October,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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