Fields v. Wilcher et al

Filing 8

REPORT AND RECOMMENDATIONS dismissing without prejudice 1 Complaint, 7 Amended Complaint filed by Kelvin Jerome Fields. Objections to R&R due by 9/6/2017. Signed by Magistrate Judge G. R. Smith on 8/22/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KELVIN JEROME FIELDS,
Plaintiff,
v.
JOHN T. WILCHER, Sheriff, et al.,
Defendants.

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CV417-129

REPORT AND RECOMMENDATION
Proceeding pro se and in forma pauperis, Kelvin Jerome Fields
brings this 42 U.S.C. § 1983 action against Sheriff John T. Wilcher, Det.
James Hutcherson, Attorneys Dennis O’Brien and June Fogle, and
District Attorney Meg Heap.1

The Court now screens his Complaint

under 28 U.S.C. § 1915A.2

1

Plaintiff filed an “amended complaint” adding “district attorney Meg Head” as a
“material witness/defendant.” Doc. 7 at 3. Ms. Heap is the District Attorney of
Chatham County.
2

Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No.
104-134, 110 Stat. 1321-71, to establish procedures to govern civil complaints filed in
federal court by prisoners and other detainees. Among the PLRA’s procedures is the
requirement for this Court to conduct an early screening in all civil cases of any
complaint in which a prisoner seeks redress from a government entity or official. See
28 U.S.C. § 1915A. The purpose of the early screening is to “identify cognizable
claims” in the prisoner’s complaint and to dismiss any claims that: (1) are frivolous;
(2) are malicious; (3) fail to state a claim upon which relief can be granted; or (4) seek
monetary relief from a defendant immune from such relief. Id. Therefore, the Court

I.

BACKGROUND3
Kelvin Fields is detained at Chatham County Jail for felony sale of

a controlled substance in violation of O.G.C.A. § 16-13-30. See doc. 1 at
4, 9-14 (three arrest warrants for sales of crack cocaine); State of Georgia
v. Fields, CR16-2514 (Chatham Super. Ct.) (three counts for sale of a
controlled substance remain pending with no trial date set and a plea of
not guilty entered).

He contends the arrest warrants were invalidly

executed and unsupported by “physical evidence,” that his continued
detention is unconstitutional, and that he is being held on a
“misdemeanor offense” long in excess of the maximum one-year
punishment for such an offense. Doc. 1 at 7, 15-16. His state habeas
action challenging the state prosecution was recently dismissed because
his underlying criminal action remains pending. See Fields v. Wilcher,
SPCV17-00692-AB (Chatham Super. Ct.) (dismissed on July 13, 2017).

examines plaintiff’s Complaint to determine whether he has stated a claim for relief
under 42 U.S.C. § 1983.
3

Because the Court applies Fed. R. Civ. P. 12(b)(6) standards in screening a
complaint pursuant to § 1915A, Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79
(11th Cir. 2001), allegations in the complaint are taken as true and construed in the
light most favorable to the plaintiff, Bumpus v. Watts, 448 F. App’x 3, 4 n.1 (11th Cir.
2011). Conclusory allegations, however, fail. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (discussing a Rule 12(b)(6) dismissal).
2

II.

ANALYSIS
Liberally

construed,

plaintiff’s

Complaint

alleges

malicious

prosecution. See Whiting v. Taylor, 85 F.3d 581, 585 & n. 5 (11th Cir.
1996) (unreasonable seizure claims, including those based on arrests
pursuant to deficient warrants, are “most closely analogous” to malicious
prosecution claims); Wallace v. Kato, 549 U.S. 384, 390 (2007) (the tort of
malicious prosecution “remedies detention accompanied . . . by wrongful
institution of legal process.”); see also Kelly v. Curtis, 21 F.3d 1544, 155354 (11th Cir. 1994) (treating as malicious prosecution claim an allegation
that detectives should have known that affidavit for arrest warrant failed
to establish probable cause).

The Eleventh Circuit “has identified

malicious prosecution as a violation of the Fourth Amendment and a
viable constitutional tort cognizable under § 1983.” Wood v. Kesler, 323
F.3d 872, 881 (11th Cir. 2003). But an essential element of a malicious
prosecution claim is the termination of the criminal prosecution in the
plaintiff’s favor. Id. at 882. And there is no allegation that the Chatham
County criminal case, CR-16-2514, has been resolved in his favor. See
doc. 1. Indeed, at the time he filed his complaint Fields’ state criminal
case was and apparently is still pending.

3

See attached (case status

“open”).

He therefore cannot bring suit challenging the wrongful

issuance of legal process (his arrest warrant) until that prosecution is
terminated in his favor or his conviction is overturned. 4
Though a pro se prisoner normally should be given an opportunity
to amend his complaint at least once, see, e.g., Johnson v. Boyd, 568 F.
App’x 719, 724 (11th Cir. 2014); Duff v. Steub, 378 F. App’x 868, 872
(11th Cir. 2010), “a district court need not allow amendment if the
amended complaint would still be subject to dismissal.”

4

Jenkins v.

In the event that such state court criminal proceeding has been finalized into a
conviction, Fields would now be complaining of defects that necessarily imply its
invalidation. In that case, § 1983 affords him no remedy: “[A] prisoner in state
custody cannot use a § 1983 action to challenge the fact or duration of his
confinement. . . . He must seek federal habeas corpus relief (or appropriate state
relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quotes and cites
omitted); Heck v. Humphrey, 512 U.S. 477, 481 (1994) (“[H]abeas corpus is the
exclusive remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release, even though such a claim may
come within the literal terms of § 1983.”); Cooks v. Sec’y, Fla. Dep’t of Corr., 599 F.
App’x 940, 941 (11th Cir. 2015) (district courts must “‘ensure that state prisoners use
only habeas corpus (or similar state) remedies when they seek to invalidate the
duration of their confinement -- either directly through an injunction compelling
speedier release or indirectly through a judicial determination that necessarily
implies the unlawfulness of the State’s custody.’”) (quoting Wilkinson, 544 U.S. at
81). And before he can bring a federal habeas action, he must first exhaust his
available state remedies through either a direct appeal or another petition for state
collateral relief. Wilkinson, 544 U.S. at 79 (federal “habeas corpus actions require a
petitioner fully to exhaust state remedies, which § 1983 does not”); 28 U.S.C.
§§ 2254(b), (c).
4

Walker, 620 F. App’x 709, 711 (11th Cir. 2015). Plaintiff’s malicious
prosecution claim is dead on arrival, and does not appear amendable. 5
III. CONCLUSION
Accordingly,

Kelvin

Jerome

Fields’

Complaint

should

be

DISMISSED without prejudice. Meanwhile, it is time for Fields to
pay his filing fee. His PLRA paperwork reflects $0 in current balance,
with an indigent fund debt of $56.20 and medical charges debt of $40.
Doc. 3. He therefore owes no initial partial filing fee. 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)
shall therefore set aside and remit 20 percent of all future deposits to his
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 Report and
Recommendation (R&R) to plaintiff’s account custodian immediately, as
5

Despite the lack of any apparent basis for viable amendment, Fields’ opportunity to
object to this Report and Recommendation within 14 days of service, see infra,
affords him an opportunity to resuscitate his case. He may also submit a Second
Amended Complaint during that period, if he believes it would cure the legal defects
discussed above. See Willis v. Darden, 2012 WL 170163 at * 2 n.3 (S.D. Ga. Jan. 19,
2012) (citing Smith v. Stanley, 2011 WL 1114503 at * 1 (W.D. Mich. Jan. 19, 2011)).
5

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 he is
transferred to another institution, his present custodian shall forward a
copy of this R&R and all financial information concerning payment of the
filing fee and costs in this case to plaintiff's new custodian. The balance
due from plaintiff shall be collected by the custodian at his next
institution in accordance with the terms of the payment directive portion
of this Order.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document
should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district

judge

will

review

the magistrate

6

judge’s

findings

and

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
August, 2017.

7

22nd

day of

Details

Page 1 of 5

Case Information

CR162514

J3

Karpf, Michael L.

12/27/2016

Other Felony Division

Open

Party

State of Georgia

Lead Attorney
Dixon, Margaret
Sumrall

Fields, Kevin Jerome

Lead Attorney
Cail, Jr., Kenneth
H
Retained

XX/XX/XXXX

000-232-4316

Charge
Charges
Fields, Kevin Jerome

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8/22/2017

Details

Page 2 of 5
Description
1

Statute

Level

Date

Felony

09/10/2016

2

Felony

09/10/2016

Felony

09/10/2016

Sale Of Controlled

16-13-30

Substance

(B)SELL
16-13-30
(B)SELL

Sale Of Controlled

16-13-30

Substance

3

Sale Of Controlled
Substance

(B)SELL

Events and Hearings

Notes: DISMISSAL OF NWR/SP

Notes: MOTION FOR BOND & NOTICE OF APPEARANCE
FILED BY D OBRIEN

Notes: Initial Case Screening / Scanning

Notes: DISMISSAL OF UNINDICTED CHARGE

Notes: GRANTED/

Calendar Call

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Page 3 of 5
Karpf, Michael L.

01:30 PM

Reschedule Event

Notices Printed FIELDS, KEVIN JEROME D

Notices Printed OBRIEN JR, DENNIS A A

Pretrial Hearing

Karpf, Michael L.

02:30 PM

Reschedule Event

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Notices Printed FIELDS, KEVIN JEROME D

Notices Printed OBRIEN JR, DENNIS A A

Karpf, Michael L.

02:30 PM

Details: |Rescheduled from 4/11/2017 at 1430 DK17030202

Notices Printed OBRIEN JR, DENNIS A A

Court: SUP Notes: |Rescheduled from 4/11/2017 at 1430
DK17030202

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Page 5 of 5
Karpf, Michael L.

1:30 PM

Notices Printed CAIL, Jr., KENNETH H A

Notices Printed OBRIEN JR, DENNIS A A

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