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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JEFFERY LAMAR COLE,

Plaintiff,

vs. Case No.: 3:10cv178/MCR/MD

STATE OF FLORIDA, et al., 

Defendants.

_____________________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (doc. 1)

and a motion for leave to proceed in forma pauperis (doc. 2). For the limited purpose

of dismissal of this action, leave to proceed in forma pauperis will be granted. Upon

review of the complaint, the court concludes that plaintiff has failed to present an

actionable claim, and that dismissal of this case is warranted.

Since plaintiff is proceeding in forma pauperis, the court must review his

complaint to determine if it is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). Dismissals for failure to state a claim are governed

by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all the factual

allegations in the complaint as true and evaluates all inferences derived from those

facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d
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1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as pleaded th

do not state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring

the negatively-glossed “no set of facts” language previously used to describe the

motion to dismiss standard and determining that because plaintiffs had “not nudged

their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). A complaint is also subject to dismissal

under Rule 12(b)(6) when its allegations--on their face--show that an affirmative

defense bars recovery on the claim. Marsh v. Butler County, Ala., 268 F.3d 1014,

1022 (11 Cir. 2001). th

Plaintiff is a pretrial detainee at the Santa Rosa County Jail awaiting trial in

Santa Rosa County Circuit Court Case Number 5710CF000560 for leaving the scene

of an accident with property damage. (Doc. 1, p. 5). He is suing the State of Florida,

Assistant State Attorney Michelle Janson, Milton Police Officer Patrick Burns and

Santa Rosa CountySheriff’s Detective Shuler, claiming false imprisonment, slander,

and false arrest (“lying to obtain an arrest”) in connection with the “Hit and Run”

which occurred on April 10, 2010. (Id., pp. 5-7). Plaintiff asserts he was

misidentified as the driver of the vehicle through coercive and impermissibly

suggestive identification procedures, that he was arrested and charged on the basis

of false information (the misidentification and the officer’s false statement), and that

someone else has now admitted to the crime. Plaintiff complains that the charges

have not been dismissed, that he is still being held, and that his requests for release

have been denied. (Id., pp. 5-6). As relief, he seeks the following: “I want apology

from the State’s Attorney and Officer Burns. Money relief in the amount of $50,000

(Fifty-Thousand Dollars) for mental anguish, false imprisonment, job-loss, property

loss, pain and suffering.” (Id., p. 7). Liberally construed, plaintiff’s complaint

asserts Fourth and Fourteenth Amendment claims of false arrest and false

Case No: 3:10cv178/MCR/MD
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imprisonment , as well as state law claims (e.g., slander). 1

Plaintiff’s federal claims are due to be dismissed under Heck v. Humphrey,

512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Court held that an

action under section 1983 that by its nature challenges the lawfulness of a

conviction or sentence is not cognizable unless and until the sentence or conviction

is “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.” Id. at 487, 114

S.Ct. at 2372. Absent such an invalidation, the section 1983 suit must be dismissed.

Id. 

The rule of Heck v. Humphrey “applies not only to convicted persons but also

to plaintiffs . . . who as yet only face prosecution.” Wiley v. City of Chicago, 361 F.3d

994, 996 (7 Cir. 2004) (citing Gonzalez v. Entress, 133 F.3d 551, 553 (7 Cir. 1998)). th th

In other words, where charges are outstanding against a plaintiff and his

constitutional claims would necessarily implythe invalidityof a potential conviction,

the action would be barred under Heck. See Washington v. Summerville, 127 F.3d

552, 556 (7 Cir. 1997), cert. denied, 523 U.S. 1073 (1998). th

Relying on Smith v. Holtz, 87 F.3d 108 (3rd Cir. 1996), which held that “a claim

that, if successful, would necessarily imply the invalidity of a conviction on a

pending criminal charge is not cognizable under § 1983,” the Seventh Circuit in

Washington concluded that if successful § 1983 claims “would necessarily implythe

invalidity of a potential conviction,” then the claims do not accrue until the charges

“A false imprisonment claim under § 1983 is based on the protection of the Fourteenth

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Amendment against deprivations of liberty without due process of law.” Ortega v. Christian, 85 F.3d

1521, 1526 (11 Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693-94, 61

th

L.Ed.2d 433 (1979)). To sustain a viable claim under § 1983, plaintiff must establish the elements of

common law false imprisonment, which resulted in violating plaintiff’s due process rights conferred

by the Fourteenth Amendment. See Ortega, 85 F.3d at 1526.

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are resolved favorably to the plaintiff. Washington, 127 F.3d at 556. Thus, Heck also

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prevents § 1983 claims that necessarily imply the invalidity of potential convictions.

Hamilton v. Lyons, 74 F.3d 99, 103 (5 Cir. 1996); see also Cohen v. Clemens, 321 th

Fed. Appx. 739 (10 Cir. 2009) (dismissing, under Heck, alien detainee’s claims th

arising out of pending immigration proceeding); Josey v. Texas Dep’t of Public

Safety, 101 Fed. Appx. 9 (5 Cir. 2004) (dismissing, under Heck, pretrial detainee’s

th

§ 1983 suit claiming there was no probable cause for his arrest, he was not read his

rights under Miranda, and he was being denied right to speedytrial, where resolving 3

those claims in detainee’s favor would undermine the validity of his potential

conviction for driving while intoxicated); Thomas v. Pugh, 9 Fed. Appx. 370 (6 Cir. th

2001) (dismissing, under Heck, pretrial detainee’s § 1983 suit claiming denial of

speedy trial); Newman v. Leon County Sheriff’s Office, No. 4:08cv474/SPM/WCS,

2009 WL 62652 (N.D. Fla. Jan. 7, 2009) (dismissing, under Heck, pretrial detainee’s

Fourth, Sixth and Fourteenth Amendment claims brought under § 1983, where

resolving those claims in detainee’s favor would undermine the validity of his

potential conviction on pending criminal charges); Williams v. Daniels, No.

4:06cv434/WS/WCS, 2006 WL 3694646 (N.D. Fla. Dec. 12, 2006) (same, where pretrial

detainee raised Sixth Amendment claim that he was being denied right to counsel

in pending criminal prosecution).

In Smith v. Holtz, supra, the court reasoned that “many of the concerns noted in Heck apply

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equally to claims that, if successful, would necessarily imply the invalidity of a future conviction on

a pending charge.” 87 F.3d at 113, explained in Washintgon, 127 F.3d at 556.

If such a claim could proceed while criminal proceedings are ongoing, there would be

a potential for inconsistent determinations in the civil and criminal cases and the

criminal defendant would be able to collaterally attack the prosecution in a civil suit.

In terms of the conflicts which Heck sought to avoid, there is no difference between

a conviction which is outstanding at the time the civil rights action is instituted and

a potential conviction on a pending charge that may be entered at some point

thereafter.

Smith, 87 F.3d at 113 (emphasis in original).

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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Here, were the court to make a determination in plaintiff’s favor on his

constitutional claims, it would necessarily imply the invalidity of his potential

conviction of leaving the scene of an accident with property damage. Thus, this

action is barred by Heck and should be dismissed without prejudice. Furthermore,

because plaintiff’s criminal case is pending, abstention is warranted. Plaintiff has 4

a judicial forum where his claims on constitutional violations may be raised.

Because plaintiff’s allegations fail to state a claim for relief under § 1983 that

is plausible on its face, his federal claims should be dismissed. Having dismissed

all federal claims, the undersigned recommends that the court, in its discretion

pursuant to 28 U.S.C. § 1367(c)(3), decline to exercise supplemental jurisdiction over

any state law claims that may be construed from the complaint. See United Mine

Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218

(1966). 

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action. 

And it is respectfully RECOMMENDED:

1. That plaintiff’s federal claims be DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief

can be granted.

2. That plaintiff’s state law claims be DISMISSED WITHOUT PREJUDICE to his

filing them in state court. 

The federal courts, by virtue of 28 U.S.C. § 2283, generally lack the power to enjoin pending

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state court proceedings, “except as expressly authorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. Independent of the

statutory limitation on the federal injunctive power, considerations of federalism and comity have led

to the development of an “abstention doctrine” that counsels against federal interference with

pending state court proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

In Younger, the United States Supreme Court held that an ongoing state criminal proceeding may not

be enjoined “except under special circumstances.” Id., at 41, 91 S.Ct. at 749. Special circumstances

are not alleged here.

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3. That the clerk be directed to close this file. 

At Pensacola, Florida, this 3 day of June, 2010. rd

 /s/ Miles Davis

MILES DAVIS

UNITEDSTATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv178/MCR/MD