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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TIMOTHY WALDEN,

Plaintiff,

vs. Case No. 3:10cv103/LAC/EMT

STATE OF FLORIDA CORP.,

Defendant.

___________________________________/

REPORT AND RECOMMENDATION

This matter was referred to the undersigned by the District Judge upon dismissal of two

original Plaintiffs from this action and for further review of the claim of the remaining Plaintiff,

Timothy Walden (see Doc. 37). Plaintiff Walden, an inmate of the Florida Department of

Corrections proceeding pro se and in forma pauperis, names the State of Florida as the sole

Defendant in this action (Doc. 13 at 1). Plaintiff challenges the validity of his state criminal

conviction and sentence on the ground that the state court lacked jurisdiction to convict and sentence

him because the Florida criminal statutes, pursuant to which he was convicted, were not enacted in

accordance with the Florida Constitution (id. at 2–26). As relief, Plaintiff seeks immediate release

from confinement and compensation for his invalid incarceration (id. at 26).

Because Plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied

that the action 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). A complaint is frivolous under section 1915(e) “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104

L. Ed. 2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are
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“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). 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 (11th Cir. 1997). The

allegations of the complaint are taken as true and are construed in the light most favorable to

Plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However,

such acceptance should not be given blindly; only well-pleaded factual allegations are taken as true

and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502

(5th Cir. 1980);1 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam)

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “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). Upon review of the Amended Complaint, the court

concludes that dismissal of this action is warranted.

It is well-settled that a prisoner in custody is barred from challenging the lawfulness of his

conviction or confinement in a suit for damages under § 1983 if (1) the action, if successful, would

demonstrate the invalidity of the underlying conviction or sentence; and (2) his conviction or

1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

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sentence has not already 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.” Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S. Ct.

2364, 2372, 129 L. Ed. 2d 383 (1994). In the instant case, Plaintiff directly challenges the legality

of his confinement. Because a judgment in favor of Plaintiff finding that the state court lacked

authority to convict and sentence him would necessarily call into question the validity of his

sentence, Plaintiff may not recover monetary damages unless his conviction or sentence has been

reversed, expunged, or invalidated. See id. As Plaintiff has not shown that his conviction or

sentence has been reversed, expunged, declared invalid by a state tribunal, or called into question

by a federal court’s issuing a writ of habeas corpus, his exclusive remedy for challenging the fact

of his confinement is through a habeas corpus petition filed under 28 U.S.C. § 2254.2

 See Bradley

v. Pryor, 305 F.3d 1287, 1289–90 (11th Cir. 2002); see also, e.g., Price v. McNeil, 340 Fed. Appx.

581, 583–84, 2009 WL 2414390, at **2 (11th Cir. 2009) (Heck doctrine barred prisoner’s

challenges to legality of his confinement or to procedure of state court procedures in § 1983 action

for damages) (unpublished); Pugh v. Smith, 333 Fed. Appx. 478, 479–80, 2009 WL 1783996, at

**1–2 (11th Cir. 2009) (state prisoner’s claims that he was wrongly convicted, and that, as result,

his sentence should be commuted and he was entitled to immediate release, were not cognizable

2

 The appropriate venue for filing a § 2254 petition is the United States District Court for the Middle District

of Florida. Section 2241(d) provides:

Where an application for a writ of habeas corpus is made by a person in custody under the

judgment and sentence of a State court of a State which contains two or more Federal judicial districts,

the application may be filed in the district court for the district wherein such person is in custody or

in the district court for the district within which the State court was held which convicted and

sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the

application. The district court for the district wherein such an application is filed in the exercise of

its discretion and in furtherance of justice may transfer the application to the other district court for

hearing and determination.

28 U.S.C. § 2241(d). Although Plaintiff is currently incarcerated at the Okaloosa Correctional Institution, which is

located in the Northern District of Florida, he is currently serving sentences imposed by the Circuit Court in and for

Duval County, Florida, which is located in the Middle District. See http://www.dc/state/fl/us/ActiveInmates/. If Plaintiff

filed a federal habeas petition in the Northern District, the court would consider it to be in the interest of justice to

transfer the habeas case to the Middle District, since the witnesses and other sources of proof would likely be located

there. See Parker v. Singletary, 974 F.2d 1562, 1582 and n.118 (11th Cir. 1992) (courts should give great weight to the

convenience of witnesses and ease of access to sources of proof when considering habeas transfer).

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under § 1983; rather, exclusive remedy for such claims was petition for writ of habeas corpus)

(unpublished).3

Accordingly, it is respectfully RECOMMENDED:

1. That this action be DISMISSED for failure to state a claim on which relief may be

granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

2. That the clerk be directed to enter judgment accordingly and close the file.

At Pensacola, Florida, this 22nd day of September 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all 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 (11th Cir. 1988).

3

 The undersigned cites Price and Pugh only as persuasive authority and recognizes that the opinions are not

considered binding precedent. See 11th Cir. R. 36-2. 

Case No. 3:10cv103/LAC/EMT