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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JAMES LONNIE BAKER, JR,

Plaintiff,

v. CASE NO. 5:10cv11/RS-AK

DEPARTMENT OF CORRECTIONS,

Defendant.

________________________________________/

O R D E R

Plaintiff has filed an Amended Complaint asserting claims of false imprisonment against

the Secretary of the Department of Corrections and Michael Presnell, described as “Milton

Probation Parole 01-1,” for damages incurred as the result of evidentiary errors he alleges

occurred at his revocation hearing (Doc. 13). As he was advised by previous Order, (Doc. 12),

these claims concern the validity of the state court conviction, and he is barred from pursuing a

claim for damages that is related to a sentence or conviction that has not yet been reversed or

invalidated. Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). 

Although Plaintiff has not addressed the circumstances of his present incarceration, he is serving

a sentence for battery that is at issue in the appeal papers attached to his complaint and there is no

indication that this conviction has been reversed. 

I. Standard of Review

A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a

claim upon which relief may be granted. 28 U.S.C. § 1915A.
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Pro se complaints are to be held to a less stringent standard than those drafted by an

attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v. Kerner, 404

U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, a plaintiff is still

required to "set forth factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory." Worst v. Hart, 1995

WL 431357, *2 (N.D. Fla. 1995). It cannot be assumed that a Plaintiff will prove facts which

have not been alleged. Quality Foods de Centro America, 711 F.2d at 995, citing Associated

General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519,

103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence, even though the pleading standard for a

pro se complaint is quite liberal, “bald assertions and conclusions of law will not suffice.” Leeds

v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's

complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta Housing

Auth., 998 F.2d 904, 912 (11th Cir. 1993).

The Court is required to dismiss a complaint at any time if it is determined to be

frivolous. 28 U.S.C. §1915(e)(2)(B)(I). Typically, a court should serve the complaint and have

benefit of the defendant’s response before making such a determination, but there are compelling

reasons for immediately dismissing frivolous suits by prisoners since they unduly burden the

courts, obscure meritorious claims, and require innocent parties to expend significant resources

in their defense. Williams v. Secretary for the Department of Corrections, 131 Fed. Appx. 682,

686 (11 Cir. 2005). Dismissal prior to service is also appropriate when the Court determines th

from the face of the complaint that the factual allegations are clearly baseless or that the legal

theories are indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11th

Case No: 5:10-cv-00011-RS-AK
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Cir. 1993).

II. Discussion

Plaintiff does not allege what either of the two named defendants actually did to violate

his rights; his primary complaints are directed at his own attorney for having a conflict of interest

and not objecting to the evidence, and at the judge, whom he alleges abused his discretion in

allowing the inadmissible evidence. These type of claims are clearly habeas in nature and should

be asserted in a petition pursuant to 28 U.S.C. §2254, not as civil rights violations under 42

U.S.C. §1983.

Further, as noted above, Plaintiff’s claim for damages concern a conviction for which he

is presently incarcerated, which he has challenged on appeal, and which has not been invalidated. 

Therefore, he is barred from seeking damages under Heck, cited supra.

Plaintiff has also filed a Motions for Appointment of Counsel (Doc. 14) and Motion of

[sic] Injunction (Doc. 15). In light of the dismissal of this lawsuit, the motions are denied as

moot. 

IT IS ORDERED:

1. Plaintiff’s Motion for Appointment of Counsel (Doc. 14) and Motion of

Injunction (Doc. 15) are denied as moot.

2. This case is dismissed with prejudice for failure to state a claim for relief. 

ORDERED on June 29, 2010.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case No: 5:10-cv-00011-RS-AK