Conger v. Runker et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Plaintiff's 8 MOTION to Voluntarily Dismiss Defendant McGee, and DISMISS without prejudice Defendant McGee. It is further RECOMMENDED the Court DISMISS Plaintiff's ca se for failure to state a claim, and DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case re 1 Complaint, and DENY Plaintiff in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Rep ort and Recommendation 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 2/20/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/5/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

DAVID JACKSON CONGER,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-103

v.
JOHN RUNKER, District Attorney; JOHN
DOE, Assistant District Attorney; and JIM
MCGEE, Attorney,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently detained at the Coffee County Jail in Douglas, Georgia, submitted a
Complaint pursuant to 42 U.S.C. § 1983.

(Doc. 1.)

For the reasons set forth below, I

RECOMMEND that the Court GRANT Plaintiff’s Motion to Voluntarily Dismiss Defendant
McGee, (doc. 8), and DISMISS without prejudice Defendant McGee. I also RECOMMEND
the Court DISMISS Plaintiff’s case for failure to state a claim, DIRECT the Clerk of Court to
enter the appropriate judgment of dismissal and CLOSE this case, and DENY Plaintiff in forma
pauperis status on appeal.
PLAINTIFF’S ALLEGATIONS 1
Plaintiff claims that he has been detained at the Coffee County Jail since April 25, 2017,
and has not received any hearing, been indicted on any charges, or spoken to his attorney,
Defendant McGee. (Doc. 1, p. 4.) As relief, Plaintiff would like his “charges dismissed and to
be reimbursed [for] money . . . spent on commissary and phone calls . . . .” (Id.)
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The below-recited facts are taken from Plaintiff’s Complaint, (doc. 1), and are accepted as true, as they
must be at this stage.

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

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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.”).
DISCUSSION
I.

Heck v. Humphrey
Plaintiff indicates that he is currently a pre-trial detainee and appears to have some

charges pending against him, as he requests those charges be dismissed.

(Doc. 1, p. 4.)

However, Plaintiff also simultaneously alleges that he has yet to be indicted. (Id.) What is clear

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is that Plaintiff has not yet been convicted and that any potential conviction has not been
reversed, expunged, invalidated, called into question by a federal court’s issuance of a writ of
habeas corpus, or otherwise overturned. As such, 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
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

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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

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Section 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 of his conviction or sentence.
In fact, Plaintiff indicates he has yet to be indicted.

However, his requested relief is

compensation for his detention at the Coffee County Jail and for all charges to be dismissed.
(Doc. 1, p. 4.) Thus, the Heck decision unquestionably applies and precludes Plaintiff’s claims.
For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
II.

Younger Abstention Doctrine
Additionally, insofar as Plaintiff is asking this Court to intervene in the state case’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 (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

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appropriate as a Section 1983 cause of action when there is ample opportunity to raise
constitutional challenges in those state court proceedings).
Here, the Younger abstention doctrine explicitly blocks Plaintiff’s request for this Court
to dismiss any pending charges and to compensate him for his time at the Coffee County Jail.
(Doc. 1, p. 4.)

Ordering the state court to do so or making any determination as to the

constitutionality of Defendants’ actions could substantially interfere with the state criminal
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 an adequate remedy at law because he is free to allege the same
violations by Defendants in his state criminal proceedings. See Boyd v. Georgia, No. CV 112042, 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 reasons, the Court should DISMISS Plaintiff’s Complaint.

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III.

Prosecutorial Immunity
Finally, to the extent Plaintiff seeks to hold Defendants Runker and Doe responsible for

their role in his criminal case, he may not do so. The Supreme Court has repeatedly reiterated
that Section 1983 did not abrogate the doctrine of absolute prosecutorial immunity. See, e.g.,
Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009). “Today, absolute prosecutorial immunity
extends to ‘acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of his role as an advocate for the State.’” FavorsMorrell v. United States, No. CV 214-164, 2015 WL 3766853, at *3 (S.D. Ga. June 15, 2015)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)); see also Rivera v. Leal, 359 F.3d
1350, 1353 (11th Cir. 2004) (“A prosecutor is entitled to absolute immunity from suit for all
actions he takes while performing his function as an advocate for the government.”).
Any claims Plaintiff may have regarding the actions of District Attorney John Runker
and the John Doe Assistant District Attorney causing his arrest would pertain to their actions as
advocates for the State of Georgia and concern prosecutorial functions that are intimately
associated with the judicial phase of the prosecution. See Van de Kamp, 555 U.S. at 342 (citing
Kalina v. Fletcher, 522 U.S. 118, 127, 130 (1997)). Thus, prosecutorial immunity provides
additional, independent grounds to dismiss Plaintiff’s claims against Defendants.
IV.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

Though

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”).

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A certificate of appealability is not required in this Section 1983 action.
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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).
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.
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court GRANT Plaintiff’s
Motion to Voluntarily Dismiss Defendant McGee, (doc. 8), and DISMISS without prejudice
Defendant McGee. I also RECOMMEND the Court DISMISS Plaintiff’s case for failure to
state a claim, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and
CLOSE this case, and DENY Plaintiff in forma pauperis status on appeal.
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

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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 5th day of February,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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