Epstein v. Dozier et al
ORDER Denying Plaintiff's 2 MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge R. Stan Baker on 1/12/2018. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
MICHAEL ANTHONY EPSTEIN,
CIVIL ACTION NO.: 5:17-cv-107
GREGORY DOZIER; BREANNA
HOLLOWAY; WARDEN OF GEORGIA
CLASSIFICATION PRISON; WARDEN
HILTON HALL; COUNSELOR DUTCH OF
GEORGIA CLASSIFICATION PRISON; and
GEORGIA DEPARTMENT OF
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Coffee Correctional Facility in Nicholls, Georgia,
filed a Complaint, as amended, pursuant to 42 U.S.C. § 1983. (Docs. 1, 5.) Plaintiff also filed a
Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) For the reasons set forth below, the
Court DENIES Plaintiff’s Motion.
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In his Amended Complaint, Plaintiff contends his Seminole County, Georgia, parole was
revoked, even though that portion of his sentence expired. Plaintiff asserts he wrote grievances
about receiving credit against his sentence while he was housed at the Georgia Diagnostic &
Classification Prison, as well as while he has been housed at Coffee Correctional. (Doc. 5.) He
seeks monetary damages and his immediate release from confinement.
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, 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.”).
Whether Venue is Proper in This Court
A district court may raise the issue of defective venue sua sponte. Collins v. Hagel, No.
1:13-CV-2051-WSD, 2015 WL 5691076, at *1 (N.D. Ga. Sept. 28, 2015) (citing Kapordelis v.
Danzig, 387 F. App’x 905, 906–07 (11th Cir. 2010) (affirming sua sponte transfer, pursuant to
28 U.S.C. § 1406(a), of pro se prisoner’s civil rights action from New York to Georgia); Berry v.
Salter, 179 F. Supp. 2d 1345, 1350 (M.D. Ala. 2001); cf. Lipofsky v. New York State Workers
Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988); and Nalls v. Coleman Low Fed. Inst., 440 F.
App’x 704, 706 (11th Cir. 2011)). When venue is improper, a court “shall dismiss, or if it be in
the interest of justice, transfer such case to any district . . . in which it could have been brought.”
28 U.S.C. § 1406(a). “The court may transfer the case if (1) the proposed transferee court is one
in which the action ‘could have been brought’ and (2) transfer would be ‘in the interest of
justice.’” Leach v. Peacock, Civil Action No. 2:09cv738-MHT, 2011 WL 1130596, at *4 (M.D.
Ala. Mar. 25, 2011) (citing 28 U.S.C. § 1406(a)). Trial courts generally have broad discretion in
determining whether to transfer or dismiss a case. Id. (citing England v. ITT Thompson Indus.,
Inc., 856 F.2d 1518, 1520 (11th Cir. 1988)).
This Court is not the proper venue to hear Plaintiff’s claims against the named
Defendants, except as to Defendant Hall. 28 U.S.C. § 1391(b) sets forth the applicable venue
A civil action may be brought in (1) a judicial district in which any defendant
resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or (3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district in which any defendant
is subject to the court’s personal jurisdiction with respect to such action.
Plaintiff complains, in part, about events occurring in Seminole County and Butts County, which
are within the Middle District of Georgia. 28 U.S.C. § 90(b). Ordinarily, this Court would
transfer this case, in the interest of justice, as venue is not proper in this Court.
However, as explained below, in this case, because Plaintiff fails to state a claim, the
interest of justice would not be served by transferring this case to the Middle District of Georgia.
Plaintiff’s claims would be subject to dismissal in that court, and thus, transferring this case to
another district would be futile. Accordingly, the Court should DISMISS Plaintiff’s Complaint.
Dismissal Pursuant to Heck v. Humphrey and Rooker-Feldman Doctrine
The allegations contained in Plaintiff’s Complaint center around criminal proceedings in
Seminole County, Georgia. There is no indication from his Complaint that Plaintiff’s conviction
has been reversed, expunged, invalidated, called into question by a federal court’s issuance of a
writ of habeas corpus, or otherwise overturned. (Doc. 5.) 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. 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.,
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 any underlying conviction or sentence has been
favorably terminated. Rather, Plaintiff alleges that his term of parole has expired, yet he remains
imprisoned, and he seeks monetary compensation.
Even if Plaintiff is not challenging a
conviction, he is at least challenging his confinement. However, Heck’s bar to claims is not
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).
For all of these reasons, the Heck decision unquestionably precludes Plaintiff’s claims,
and the Court should DISMISS Plaintiff’s Complaint.
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 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 the criminal charges against him in Seminole County, Georgia, this Court lacks
jurisdiction over his claims.
For these reasons, the Court should DISMISS Plaintiff’s non-conditions of confinement
claims in their entirety.
Plaintiff’s Claims Against Defendant Hall
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two
elements. First, a plaintiff must allege that an act or omission deprived him “of some right,
privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. Federal Rule of
Civil Procedure 8(a)(2) requires a pleading to contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a plaintiff need not
provide detailed factual allegations, a complaint is insufficient if it offers no more than “labels
and conclusions,” or “an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678 (citations omitted).
Here, Plaintiff fails to make any factual allegations against Defendant Hall indicating that
Defendant Hall violated his constitutional rights. Instead, Plaintiff merely asserts that he filed a
grievance regarding credit against his sentence, and Defendant Hall is the Warden at Coffee
Section 1983 liability must be based on something more than a
defendant’s supervisory position or a theory of respondeat superior. 1 Bryant v. Jones, 575 F.3d
1281, 1299 (11th Cir. 2009); Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801
(11th Cir. 1998). A supervisor may be liable only through personal participation in the alleged
constitutional violation or when there is a causal connection between the supervisor’s conduct
and the alleged violations. Id. at 802. “To state a claim against a supervisory defendant, the
plaintiff must allege (1) the supervisor’s personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or policy that resulted in deliberate
indifference to the plaintiff’s constitutional rights, (3) facts supporting an inference that the
supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a history of
widespread abuse that put the supervisor on notice of an alleged deprivation that he then failed to
correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
Plaintiff seeks to hold Defendant Hall liable solely based on his supervisory position as
the Warden at Coffee Correctional Facility.
However, Plaintiff fails to present any facts
indicating there is a causal connection between any actions of Defendant Hall and the alleged
violation of Plaintiff’s constitutional rights. He does not allege that Defendant Hall personally
involved in the conditions that he complains of or that the conditions resulted from some custom
or policy Defendant Hall promulgated or maintained. Plaintiff also fails to plausibly allege that
Defendant Hall directed the allegedly unlawful conditions or ignored a widespread history of
The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).
abuse in this regard. In fact, Plaintiff fails to make any conclusory allegations that Defendant
Hall was aware of or was personally responsible for the alleged violations of Plaintiff’s
What is more, “[a]n allegation that prison officials denied grievances does not ‘support a
finding of constitutional violations on the part of’ those defendants.” Gresham v. Lewis, No.
6:15-CV-86, 2016 WL 164317, at *3 (S.D. Ga. Jan. 13, 2016) (citing Bennett v. Sec’y, Fla.
Dep’t of Corr., No. 4:12CV32-MP/CAS, 2012 WL 4760856, at *1 (N.D. Fla. Aug. 27, 2012),
report and recommendation adopted, No. 4:12-CV-00032-MP-CAS, 2012 WL 4760797 (N.D.
Fla. Oct. 2, 2012) (quoting Raske v. Dugger, 819 F. Supp. 1046, 1054 (M.D. Fla. 1993)); see
also Ludy v. Nelson, No. 5:14-CV-73-MTT-CHW, 2014 WL 2003017, at *3 (M.D. Ga. Apr. 18,
2014), report and recommendation adopted, No. 5:14-CV-73 MTT, 2014 WL 2003096 (M.D.
Ga. May 15, 2014) (“However, the mere fact that a prison official denies a grievance is
insufficient to impose liability under § 1983.”) (citing Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir. 2009), and Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005)). To the extent
Plaintiff makes an allegation that Defendant Hall’s denial of Plaintiff’s grievance violates
Plaintiff’s constitutional rights, such an allegation must fail.
Accordingly, the Court should DISMISS Plaintiff’s claims against Defendant Hall.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2
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”).
A certificate of appealability is not required in this Section 1983 action.
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.
The Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis.
(Doc. 2.) I RECOMMEND the Court DISMISS Plaintiff’s Complaint for failure to state a
claim, 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 12th day of January,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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