Opinion
Civil Action 00-0220-CB-C
March 30, 2001
REPORT AND RECOMMENDATION
Plaintiff, a federal prison inmate proceeding pro se, filed a civil action in which he challenges his conviction. This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the undersigned on Plaintiff's Motion for Preliminary Injunction ("motion") (Docs. 7 10). For the reasons stated below, it is recommended that Plaintiff's motion be denied.
Plaintiff paid the $150.00 filing fee.
I. Nature of Proceedings .
A. Plaintiff's Motion (Docs. 7 10) .
In the motion, Plaintiff seeks his release from confinement until the trial of this action because he is falsely imprisoned due to acts of Defendant and is, therefore, suffering irreparable harm. Plaintiff claims that since his arrest on May 29, 1997, he has been incarcerated and that this Court subsequently accepted his guilty plea which was based on his actions that occurred in 1986 for which he had already served his sentence and which are beyond the statute of limitations.
Plaintiffs last amended complaint (Doc. 9) will supersede his prior complaint (Doc. 1) and amended complaint (Doc. 6) for the purposes of the Report and Recommendation. See Fritz v. Standard Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir. 1982).
In the complaint, Plaintiff states that this action arises under 28 U.S.C. § 1331, 1346(b), 2201, 2202, 2671-2680(h), and Rule 65 of the Federal Rules of Civil Procedure. Plaintiff alleges claims of malicious prosecution, false imprisonment, and abuse of process. The facts that he offers to support these claims are the following. Plaintiff was arrested on May 29, 1997, for being a member of a conspiracy to distribute crack cocaine in Uniontown, Alabama. Pursuant to a search warrant, agents searched his home and seized $17,552.00 in cash, travelers checks, and food stamps, and later seized his bank accounts containing $28,893.41 and $16,948.64.
Upon release from federal prison in 1993, Plaintiff contends that he was employed and that his income came from his rental property and his convenience store. Plaintiff complains that agents made no attempt to determine the sources of his funds and that some of the seized funds belonged to his wife.
Evidence presented to the grand jury that rendered his indictment concerned Plaintiff's conduct in 1986, which, he contends, is beyond the statute of limitations. On several occasions, Plaintiff maintains that the grand jury refused to indict Plaintiff.
On numerous occasions, Plaintiff's attorney told him that the government wanted him to plead guilty and to cooperate or he would face a sentence of life imprisonment. Plaintiff initially refused to cooperate because he was not guilty. Plaintiff then pleaded guilty to misprison of a felony.
For relief, Plaintiff requests damages for the time that he has spent in prison and for the money taken from him. Plaintiff also seeks unspecified declaratory and injunctive relief.
II. Discussion .
In order for Plaintiff to prevail on a request for a preliminary injunction, he must show:
(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to public interest. "The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant `clearly carries the burden of persuasion' as to the four prerequisites."Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). It is mandatory that the movant convince the court that all four factors are satisfied. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (finding that a preliminary injunction was properly denied where movant failed to established one factor because movant bore burden of persuasion on each of the four factors); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (same).
Injunctive relief will not issue unless the complained of conduct is imminent and no other relief or compensation is available. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987); Sullivan v. Division of Elections, 718 F.2d 363, 365 (11th Cir. 1983). Further, a temporary restraining order or a preliminary injunction is a drastic remedy used primarily for maintaining the status quo of the parties. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).
In the present motion, Plaintiff must establish that there is a substantial likelihood that he will ultimately prevail on the merits. After an examination of Plaintiff's complaint and motion, the undersigned finds that Plaintiff has failed to do so. Plaintiff's allegations are related to his conviction for misprison of a felony for which he is presently incarcerated. Plaintiff has made no showing that his conviction, sentence, or attendant seizure of money has been invalidated. In fact, the records in this Court show that no invalidation has occurred. United States of America v. Williams, 97-00099-CB-M (S.D.Ala. 1998).
Even though the Court is not ruling on the merits of Plaintiff's claims, at this time, it is does not appear that Plaintiff has surmounted the hurdle presented by the decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court ruled:
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.Id. at 487, 114 S.Ct. at 2372. The Heck decision is applicable to Bivens actions, such as the one brought by Plaintiff. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
Because Plaintiff is challenging his conviction, sentence, and attendant seizure of money on grounds that if the Court were to rule favorably on these grounds Plaintiff's conviction would be undermined, he will be required to establish that his conviction has been invalidated before he is authorized to proceed on a claim for damages. Plaintiff did not make this showing in his complaint, nor does it appear that he will be able to make such a showing.
Not only does it appear that Plaintiff would not be successful on his Bivens damages claims, no substantial likelihood that he will prevail on the merits of his claims for injunctive and declaratory relief has been shown. A claim for injunctive and declaratory relief in a Bivens action where a plaintiff challenges the fact or duration of his confinement and seeks his immediate or speedier release is not cognizable in a Bivens action. Abella, 63 F.3d at 1066.
Heck reaffirmed that, under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1817, 36 L.Ed.2d 439 (1973), "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release." ___ U.S. at ___, 114 S.Ct. at 2364. Thus, declaratory or injunctive relief claims which are in the nature of habeas corpus claims — i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release — are simply not cognizable under § 1983. (Footnote omitted.) Id. This rule applies equally to Bivens actions. (Citation omitted.)Id. at 1066. "Therefore, injunctive and declaratory relief claims which challenge the fact or duration of confinement are simply never cognizable in § 1983 or Bivens actions." Id. at n. 4. Thus, Plaintiff's claims for injunctive and declaratory are not available to him in a Bivens action.
Plaintiff also brings his action under 28 U.S.C. § 2671-2680(h), the Federal Tort Claims Act ("FTCA"). In order to state a successful claim under this act, a claim must first be presented to the appropriate federal agency. Orlando Helicopter Airways v. United States, 75 F.3d 622, 623 (11th Cir. 1996); Sanchez v. United States, 49 F.3d 1329, 1329 (8th Cir. 1995). Plaintiff has not indicated in his complaint that he has made the required presentation of his claim to the appropriate federal agency. The undersigned observes that Defendant contends that Plaintiff cannot make this showing when it submitted the declaration of Bettie E. Goldman, stating that as Associate Chief Counsel for the Drug Enforcement Agency ("DEA"), she is the custodian for DEA records and that she has not been able to locate a FTCA claim filed by Plaintiff (Doc. 15, at 12 and attachment). Because Plaintiff has failed to establish in his complaint that he presented his claim to the appropriate agency, it appears that this Court will not have jurisdiction over his FTCA claim.
Moreover, Plaintiff claims that his action is based on Rule 65 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure, however, do not create a separate basis for federal subject matter jurisdiction. Diaz v. Sheppard, 85 F.3d 1502, 1505 n. 3 (11th Cir. 1996), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997). Plaintiff also asserts that his action is based on 28 U.S.C. § 2201 and 2202, the Declaratory Judgment Act. These sections are only procedural and do not provide a jurisdictional basis for an action, but only a remedy for a claim that is properly before the Court. GTE Directories Pub. Corp. v. Trimen America, Inc., 67 F.3d 1563, 1567 (11th Cir. 1995).
After a review of Plaintiff's claims under these different bases for his action, the undersigned finds that Plaintiff has failed to bear his burden of persuasion on the element that there is a substantial likelihood that he will ultimately prevail on the merits of the action.
Turning to the element that the injunction, if issued, would not be adverse to public interest, Plaintiff has failed to carry his burden of persuasion. In an action where Plaintiff is not able to gain his release, Abella, supra, and where he has not shown that his conviction and sentence have been invalidated, it would be against the public interest to release Plaintiff pending a trial in this action. This is particularly so in light of the Court's discussion above on the merits of Plaintiff's action, which indicates that this action may never reach the trial stage.
III. Conclusion
Because Plaintiff has failed to meet his burden on the elements there is a substantial likelihood that he will ultimately prevail on the merits and that the injunction, if issued, would not be adverse to public interest, the other elements for injunctive relief will not be discussed. See Jefferson County, 720 F.2d at 1519 (finding that a preliminary injunction was properly denied where movant failed to meet the burden of persuasion on one factor because movant bore burden of persuasion on each of the four factors). Accordingly, it is recommended that Plaintiff's motion (Docs. 7 10) be denied.
The attached sheet contains important information regarding objections to the Report and Recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded) . Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.