McFarlin v. Morse et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge state that McFarlin's complaint should be dismissed. Plaintiff's custodian shall set aside twenty percent of all deposits to foward to the Clerk until the filing fee of $350.00 is paid in full. All payments shall be designated as made in payment of civil action No. CV411-108 re 1 Complaint filed by Stanley McFarlin Objections to R&R due by 7/6/2011. Signed by Magistrate Judge G. R. Smith on 6/22/2011. (loh) Modified on 6/22/2011 (lmm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
STANLEY MCFARLIN,

)
)

Plaintiff,
V.

)

Case No. CV411-108

JUDGE JOHN E. MORSE, LYNDA
CALD WELL, and MARTIN G.
HILLIABD,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff Stanley McFarlin filed this 42 U.S.C. § 1983 civil rights
action alleging that defendants denied him the right to testify in his own
defense in a December 2004 hearing.' (Doc. 1 at 5.) The Court granted
McFarlin leave to proceed in forma pauperis on the condition that he
return a Prisoner Trust Account Statement form and a Consent to
'Notably, McFarlin lied on his complaint form. He checked a box noting that
he had not filed any other federal lawsuits (doe. 1 at 2), yet he has filed at least five
cases in this District. See McFarhn v. Battle, No. CV399-055 (S.D. Ga. Oct. 20, 1999)
(voluntarily dismissed); McFarhn v. Battle, No. CV39-059 (S.D. Ga. Sept. 29, 2000)
(defendants' summary judgment motion granted); McFarlin v. Forman, No.
CV403-219 (S.D. Ga. Jan. 29, 2004) (dismissed for failure to state a claim for relief);
McFarhn v. Lamb, No. CV403-217 (S.D. Ga. Feb. 11, 2004) (dismissed as mistakenly
filed); McFarlin v. St. Lawrence, No. CV403-242 (S.D. Ga. June 28, 2004) (dismissed
for failure to state a claim for relief).

Collection of Fees from Trust Account form. (Doc. 5.) He has returned
the two forms, so the case is ready to proceed. (Docs. 6 & 7.)
The Prison Litigation Reform Act ("PLRA") requires federal courts
to conduct early screening of all prisoner suits against governmental
entities or officials for the purpose of identifying claims that are subject to
immediate dismissal as frivolous, malicious, or legally insufficient. 28
U.S.C. § 1915A (courts must identify "cognizable claims" filed by
prisoners or other detainees and dismiss claims which are frivolous,
malicious, fail to state a claim for relief, or seek monetary relief from a
defendant immune from such relief); 42 U.S.C. § 1997e(c)(2) (allowing
dismissal on the same four standards provided by § 1915A as to any
prisoner suit brought "with respect to prison conditions"). The Court will
therefore examine the complaint to determine whether it states a
colorable claim for relief.
McFarlin's claim is utterly deficient. Filed years outside of the
statute of limitations applicable to § 1983 suits, it fails to state a claim for
relief. See Jones v. Bock, 549 U.S. 199, 215 (2007) ("[i]f the allegations...
show that relief is barred by the applicable statute of limitations, the

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complaint is subject to dismissal for failure to state a claim"). He filed suit
on May 2, 2011 for an alleged civil rights violation that occurred in 2004,
more than five years earlier. Hence, it was filed outside of the two-year
limitations period applicable to § 1983 actions brought in Georgia. E.g.,

Mullinax v. McElhenney, 817 F.2d 711, 71516 n.2 (11th Cir. 1987);
Walker v. United States, 196 F. App'x 774, 776 (11th Cir. 2006)
(same); Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986)
("the proper limitations period for all section 1983 claims in Georgia is the
two-year period set forth in O.C.G.A. § 9-3-33 for personal injuries.").
Too, his claims for damages fail as a matter of law. The judge and
prosecutor are immune from any suit for damages. The judge is protected
by absolute judicial immunity. See McBrearty v. Koji, 348 F. App'x 437,
439 (11th Cir. 2009) ("Judges are entitled to absolute judicial immunity
from damages under section 1983 for those acts taken while they are
acting in their judicial capacity unless they acted in the clear absence of all
jurisdiction. Mireles v. Waco, 112 S. Ct. 286, 288 (1991). A judge does not
act in the 'clear absence of all jurisdiction' when he acts erroneously,
maliciously, or in excess of his authority, but instead, only when he acts
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without subject-matter jurisdiction."). The prosecutor also enjoys
immunity, as she was clearly performing her function as an advocate for
the state at the hearing. Imbler v. Pachtman, 424 U.S. 409, 427 (1976);

see Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir. 2004) ("A prosecutor is
entitled to absolute immunity for all actions he takes while performing his
function as an advocate for the government. ") (quoting Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993)); Mastroianni v. Bowers, 173 F.3d
1363, 1366 (11th Cir. 1999); Jones v. Cannon, 174 F.3d 1271, 1281 (11th
Cir. 1999).
Nor can McFarlin sue his defense attorney, Martin Hilliard, for
damages. Criminal defense attorneys, even when funded by the
government, are not state actors or acting under color of state law, and
thus they may not be subjected to liability under 42 U.S.C. § 1983. Polk

County v. Dodson, 454 U.S. 312, 325 (1981) ("a public defender does not
act under color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal proceeding"); Wahl v.

McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). Whether retained or
court-appointed, an attorney who serves as counsel for a defendant in a

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criminal proceeding does not act on behalf of the state but is instead "the
State's adversary" and hence cannot be subjected to liability under § 1983.

Dodson, 454 U.S. at 318-19 n. 7, 323 n. 13; Eling v. Jones, 797 F.2d 697
(8th Cir. 1986); Hall v. Quillen, 631 F.2d 1154 9 1156 (4th Cir. 1980); Page

v. Sharpe, 487 F.2d 567, 570 (1st Cir. 1973).
Finally, to the extent McFarlin seeks to have his "sentence. . . set
aside" and to have his "rights . . . reinstated in full as a citizen of the
U.S.A.", he must seek a writ of habeas corpus pursuant to 28 U.S.C. §
2254; he cannot make such a claim in a § 1983 suit. See Hudson v.

Hubbard, 358 F. App'x 116, 119 (11th Cir. 2009) (citing Medberry v.
Crosby, 351 F.3d 1049, 1062 (11th Cir.2003)); see also Wilkinson v.
Dotson, 544 U.S. 74, 77 (2005) ("[A] prisoner in state custody cannot use a
§ 1983 action to challenge 'the fact or duration of his confinement.")
(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)); Wolff v.

McDonnell, 418 U.S. 539, 553-55 (1974) (delineating distinctions between
using § 1983 to pursue damages, and habeas for claims affecting
confinement).
Accordingly, McFarlin's complaint should be DISMISSED.

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Meanwhile, it is time for plaintiff to pay for filing this suit. The prison's
trust officer failed to average McFarlin's monthly deposits and account
balance. (Doc. 6.) Accordingly, the Court cannot assess the initial partial
filing fee in accordance with 28 U.S.C. § 1915(b)(1), but will instead
assume that none is due. The clerk, however, is DIRECTED to forward
a copy of the prisoner trust fund account statement (doc. 6) and this
Report and Recommendation to the prison's warden as an example of how
not to complete the form.
Nevertheless, IT IS FURTHER ORDERED that plaintiff's
custodian (or his designee) shall set aside 20 percent of all deposits to
plaintiff's trust fund account and forward those funds to the Clerk each
time the set aside amount exceeds $10.00, until the balance of the $350.00
filing fee has been paid in full. IT IS FURTHER ORDERED that all
payments shall be designated as made in payment of the filing fee for Civil
Action No. CV411-108. In the event plaintiff is transferred to another
institution, plaintiff's present custodian shall forward a copy of this Order
and all financial information concerning payment of the filing fee and
costs in this case to plaintiff's new custodian. The balance due from the

plaintiff shall be collected by the custodian at his next institution in
accordance with the terms of this Order.
A copy of this Order and a copy of the Consent to Collection of Fees
from Trust Account shall be served upon plaintiff and his current
custodian. The payment portion of this Order is to be implemented
immediately, as it is not subject to the adoption provision of Fed. R. Civ. P.
72(b).
SO REPORTED AND RECOMMENDED this,?o2 ay of June,
2011.

UNITED SfAYES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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