Brown v. Thomas et al

Filing 9

REPORT AND RECOMMENDATIONS Vacating re 5 REPORT AND RECOMMENDATIONS, Dismissing re 1 Complaint filed by Quinn Brown. Objections to R&R due by 9/14/2015. Signed by Magistrate Judge G. R. Smith on 8/31/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
QUINN BROWN,
Plaintiff,
V.

Case No. CV415-052
BRANDON THOMAS; JUDGE
JOHN MORSE; and MICHAEL
DENNARD,
Defendants.

REPORT AND RECOMMENDATION
On March 16, 2015, the Court granted plaintiff Quinn Brown leave
to proceed in forma pauperis ("IFP") and ordered him to return a copy of
his Prison Trust Account Statement and a completed Consent to
Collection of Fees form by April 15, 2015. Doe. 3. Brown failed to do so
and the undersigned accordingly recommended dismissal of this case.
Doe. 5. Prior to the district judge's consideration of that
recommendation, Brown submitted the necessary IFP paperwork.

See

does. 7 & 8. Because plaintiff ultimately (though belatedly) complied
with the Court's order, the previous dismissal recommendation (doe. 5) is
VACATED. A preliminary merits review of Brown's complaint, however,

reveals that it is frivolous on its face and must be dismissed prior to
service.
The Prison Litigation Reform Act ("PLRA") requires federal courts
to conduct early screening of all suits filed by prisoners or detainees for
the purpose of identifying claims that are subject to immediate dismissal
because they are frivolous or malicious, fail to state a claim for relief, or
seek monetary damages from a defendant who is immune from such
relief. 28 U.S.C. § 1915A (which applies to prisoner/detainee complaints
against governmental entities or officials, whether plaintiff is proceeding
IFP or has paid the filing fee); 28 U.S.C. § 1915(e)(2)(B) (imposing the
same dismissal obligation as to any case filed IFP, whether by a
prisoner/detainee or any other "person"); 42 U.S.C. § 1997e(c)(1)
(imposing the same dismissal obligation as to "any action brought with
respect to prison conditions"). On initial screening of a prisoner
complaint, only "cognizable claims" may be allowed to proceed. 28
U.S.C. § 1915A(b). All three statutory provisions contemplate the
dismissal of non-cognizable claims prior to service of process upon any
defendant. § 1915A (requiring screening "before docketing if feasible or
as soon as practicable after docketing"); § 1915(e)(2) (requiring

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dismissal "at any time" the court determines the suit to be factually or
legally insubstantial); § 1997e(c)(1) (requiring dismissal of insubstantial
claims on the court's "own motion").
Brown is currently a detainee at the Chatham County Jail facing
"still pending" state criminal charges. Doe. 1 at 2, 3. He has brought
this 42 U.S.C. § 1983 action against his court-appointed lawyer, a state
court judge, and the assistant district attorney who is prosecuting him.

Id. at 1. The only claim asserted in his complaint is that his defense
attorney waived his right to a preliminary hearing without his knowledge
or consent.

Id. at 5. As relief, he seeks the dismissal of the state

criminal case.
Brown, thus, would have this Court shut down an ongoing state
criminal prosecution because his lawyer performed deficiently on a single
occasion (and despite any allegation that he suffered any prejudice as a
result of that alleged error). While a federal court has the power to grant
both injunctive and declaratory relief to a person whose state prosecution
violates his federally protected rights, Younger v. Harris, 401 U.S. 37, 45
(1971), the fundamental structure of our State and National
Governments precludes the exercise of that power "except under

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extraordinary circumstances."

Id. at 45 (citation omitted); id. at 43

("Since the beginning of this country's history Congress has, subject to
few exceptions, manifested a desire to permit state courts to try state
cases free from interference by federal courts."). Even an accused's
showing of "irreparable injury" as a result of the state prosecution is
insufficient to warrant a federal court's intervention unless the
threatened injury is "both great and immediate" and is "one that
cannot be eliminated by his defense against a single criminal
prosecution." Id. at 46 (citation omitted). Thus, "[t]he accused should
first set up and rely upon his defense in the state courts . . . unless it
plainly appears that this course would not afford adequate protection."
Id. at 45; Boyd v. Georgia, 512 F. App'x 915, 918 (11th Cir. Mar. 13,
2013) (unpublished) ("respect for the state processes . . . precludes any
presumption that the state courts will not safeguard federal
constitutional rights.").'
Brown's claim that his public defender waived his right to a
preliminary hearing without his permission does not assert the type of
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In Boyd, the Eleventh Circuit upheld this Court's sua sponte dismissal of a § 1983
complaint based upon its judicial notice of an ongoing state misdemeanor prosecution
and its finding that the plaintiff would "have an opportunity to raise his
constitutional claims instate court." Id.

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state prosecutorial abuse or harassment that would justify the
extraordinary relief that he is seeking from this Court -- the outright
dismissal of the state criminal proceedings. Claims of ineffective
assistance of counsel are routine and incidental to criminal proceedings
"brought lawfully and in good faith." Younger, 401 U.S. at 49 (citation
omitted). As the state court is fully capable of addressing the alleged
violation of Brown's constitutional rights, this Court must abstain from
exercising jurisdiction over the pending state criminal case.
Additionally, "a prisoner in state custody cannot use a § 1983
action to challenge 'the fact or duration of his confinement." Wilkinson
v. Dotson, 544 U.S. 74, 77 (2005) (quoting Preiser v. Rodriguez, 411 U.S.
475 1 489 (1973). Where, as here, a state prisoner or detainee seeks
immediate or speedier release from custody as relief, "his sole federal
remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500. While a
state pretrial detainee may seek habeas relief pursuant to 28 U.S.C. §
2241, all habeas petitioners must first exhaust their state court remedies.

Wilkinson, 544 U.S. at 79 ("habeas corpus actions require petitioner fully
to exhaust state remedies, which § 1983 does not"); Fain v. Duff, 488
F.2d 218, 223 (5th Cir. 1973) (the exhaustion requirement codified in §

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2254(b) applies to all habeas corpus actions, including § 2241 petitions);
Thomas v. Crosby, 372 F.3d 782, 786 (11th Cir. 2004) (Tjoflat, J.,

concurring). If Brown wishes to proceed via habeas corpus, he must
submit a separate petition in compliance with the applicable rules.
Again, however, any such petition would be subject to immediate
dismissal for lack of exhaustion of his available state remedies.
Meanwhile, it is time for Brown to pay his filing fee. His furnished
account information shows that he has had funds in his prison account
during the past five months. Doe. 8 ($9.75 average monthly balance for
the last five months, with a $93.65 average monthly deposit). He
therefore owes an initial partial filing fee of $18.73.

See 28 U.S.C. §

1915(b)(1) (requiring an initial fee assessment "when funds exist," under
a specific 20 percent formula). Plaintiff's custodian (or designee)
therefore shall deduct $18.73 from Brown's account and remit it to the
Clerk of Court (payable to the "Clerk of Court"). The custodian shall
also set aside 20 percent of all future deposits to the account, then
forward those funds to the Clerk each time the set aside amount reaches
$10.00, until the balance of the Court's $350.00 filing fee has been paid in
full.

Also, the Clerk is DIRECTED to send this R&R to plaintiffs
account custodian immediately, as this payment directive is
nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule
72(b) adoption is required. In the event plaintiff is transferred to
another institution, his present custodian shall forward a copy of this
Report and Recommendation and all financial information concerning
payment of the filing fee and costs in this case to plaintiffs 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
Report and Recommendation.
SO REPORTED AND RECOMMENDED this

day of

August, 2015.

TTES
UNI ED " MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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