Opinion
Case No. CV415-069
01-28-2016
KEVIN ORLANDO BRIGHT Plaintiff, v. JUNE FOGLE, Assistant Public Defender; MARAGET DELEON, Assistant District Attorney, Defendants.
REPORT AND RECOMMENDATION
Inmate Keven Orlando Bright brings this 42 U.S.C. § 1983 case against a prosecutor and defense lawyer because of a defect in the state court criminal proceedings against him (his right to a preliminary hearing allegedly was waived without his consent). Doc. 1. He seeks no damages, only his immediate release and the dismissal of all charges. Id. at 6.
As Bright is proceeding in forma pauperis, docs. 3, 4 & 5, the Court is screening his case under 28 U.S.C. § 1915(e)(2)(B)(ii), to determine whether he has stated a cognizable claim for relief. See also 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, and 42 U.S.C. § 1997e(c)(2) (allowing dismissal The Court applies Fed. R. Civ. P. 12(b)(6) standards here. Leal v. Ga. Dep't of Corrs., 254 F.3d 1276, 1278-79 (11th Cir. 2001). Allegations in the complaint are thus viewed 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). But conclusory allegations fail. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing a 12(b)(6) dismissal). "[T]he pleading standard [Fed. R. Civ. P.] 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (pro se pleadings are still construed liberally after Iqbal).
Bright's case is dead on arrival. First, § 1983 affords him no remedy for the injunctive relief he seeks -- to "be released immediately" either on bond or through the dismissal of all criminal charges. "[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) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)); 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); Harris v. Purvis, 2015 WL 3439857 at * 1 (S.D. Ga. May 27, 2015).
Before plaintiff can bring a federal habeas action, he must first exhaust his available state remedies through either a direct appeal or a petition for 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). If he wishes to proceed via habeas corpus, he must submit a separate petition in compliance with the applicable rules. Such petition, however, would be subject to immediate dismissal for lack of exhaustion of his available state remedies.
Second, and to the extent Bright's criminal case is still ongoing, this Court would decline to exercise its jurisdiction to enjoin those proceedings. "Attentive to the principles of equity, comity, and federalism, the Supreme Court has recognized that federal courts should abstain from exercising jurisdiction in suits aimed at restraining pending state criminal prosecutions." Jackson v. Georgia, 273 F. App'x 812, 813 (11th Cir. 2008) (citing Younger v. Harris, 401 U.S. 37 (1971)). Rare exceptions to that rule: (1) there is a "great and immediate" danger of irreparable harm to be suffered as a result of the prosecution; (2) the state law is flagrantly and patently violative of the federal constitution; (3) there is a showing of bad faith or harassment; or (4) other unusual circumstances call for equitable relief. Mitchum v. Foster, 407 U.S. 225, 230 (1972) (citing Younger, 401 U.S. at 46-54); Cole v. State of Florida, 2010 WL 2711861 at * 3 n. 4 (N.D. Fla. Jun. 3, 2010). Bright has not met any of those exceptions and, therefore, is not entitled to the equitable relief he seeks. See King v. Stokes, 2011 WL 4083608 at * 2 (S.D. Ga. Sept. 13, 2011).
Third, "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." Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Wahl v. Mclver, 773 F.2d 1169, 1173 (11th Cir.1985). And the district attorney is immune from suit. Jackson v. Capraun, 534 F. App'x 854, 859 (11th Cir. 2013) (prosecutor entitled to absolute immunity for initiating prosecution even if he did so with malicious intent); Sutherland v. Chisolm, 2013 WL 709823 at * 3 (S.D. Ga. Feb.13, 2013) (citing Imbler v. Pachtman, 424 U.S. 409, 427 (1976) and Allen v. Florida, 458 F. App'x 841, 843 (11th Cir. 2012)).
Given the patent baselessness of Bright's Complaint, it must be DISMISSED WITH PREJUDICE and a re-pleading option is not warranted. Dysart v. BankTrust, 516 F. App'x 861, 865 (11th Cir. 2013) ("[D]istrict court did not err in denying Dysart's request to amend her complaint because an amendment would have been futile."); Langlois v. Traveler's Ins. Co., 401 F. App'x 425, 426-27 (11th Cir. 2010); Simmons v. Edmondson, 225 F. App'x 787, 788-89 (11th Cir. 2007) (district court did not err in dismissing complaint with prejudice without first giving plaintiff leave to amend because no amendment could have overcome the defendants' immunity). Also because of its frivolity, this case should be recorded as a "strike" under 28 U.S.C. § 1915(g).
Meanwhile, Bright must pay his $350 filing fee. His furnished account information shows that he has had a $499.80 average monthly balance in his prison account during the past six months. Doc. 5. He therefore owes a $99.96 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) therefore shall 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 Order to plaintiff's account custodian immediately. In the event plaintiff is transferred to another institution, his 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.
Accordingly, this case must be DISMISSED WITH PREJUDICE.
SO REPORTED AND RECOMMENDED, this 28th day of January, 2016.
/s/ _________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA