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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CARL D. MORGAN,

 Plaintiff,

vs. 5:10cv165/RH/MD

STEVE MEADOWS, et al. 

 Defendants.

O R D E R

This cause is before the court upon plaintiff’s civil rights complaint filed pursuant to

Title 42 U.S.C. §1983. Although leave to proceed in forma pauperis was granted, plaintiff

has now paid the entire $350.00 filing fee. A review of plaintiff’s complaint reveals that

plaintiff names seven defendants in this action, four of whom are employees of the office

of the state attorney or the public defender, and three defendants who do not appear to be

state agents or employees at all. Plaintiff has not filled out the statement of facts or the

statement of claims portion of the complaint form, instead referring to “see enclosed.” 

Enclosed are pleadings that plaintiff filed in state court. 

This court, with its large volume of civil rights actions, saves valuable time if it is not

required to decipher lengthy and often unintelligible submissions. This saving would be

lost if the plaintiff were allowed to either forgo use of the form entirely, or to fill in the form

with a notation instead of completing the form itself. In light of the administrative benefits

derived from the use of the form, plaintiff must fully complete the form, providing his

statement of facts and statement of claim in the space provided. Plaintiff may use

additional pages to explain his claim, if necessary, as provided on the complaint form.

Furthermore, based merely on the identity of the defendants, it is possible that

plaintiff may not be able to state a claim. As noted above, three of the defendants do not
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appear to be state employees or “state actors.” “To state a claim under § 1983 , a plaintiff

must allege the violation of a right secured by the Constitution and laws of the United

States, and must show that the alleged deprivation was committed by a person acting

under color of state law. ” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101

L.Ed.2d 40 (1988) (citations omitted); see also Holmes v. Crosby, 418 F.3d 1256 (11 Cir. th

2005) (citing West). In Adickes v. S.H. Kress & Co., the Supreme Court noted that a

private party who is involved in a conspiracy with, ie. is a willful participant in joint activity

with, a state actor is acting “under color of law” for purposes of § 1983. Adickes, 398 U.S.

144, 152, 90 S.Ct. 1598, 1605-1606, 26 L.Ed.2d 142 (1970). A plaintiff attempting to

prove such a conspiracy must show that the parties “reached an understanding” to deny

the plaintiff his or her rights. Bendiburg v. Dempsey, 909 F.2d 463, 468 (11 Cir. 1990) th

(citing Addickes, 398 U.S. at 152, 90 S.Ct. at 1605). The allegedly conspiratorial acts must

impinge upon the plaintiff’s federal right, and the plaintiff must prove an “actionable wrong”

to support the conspiracy. Bendiburg, 909 F.2d at 468 (citations omitted). Plaintiff may

wish to omit from his complaint any defendants who are not state actors unless he can

sufficiently allege a conspiracy with state defendants. 

Because there are no factual allegations in the complaint the court cannot say for

certain, but the four attorney defendants may be entitled to immunity. The Supreme Court

has held that 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 v.

Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). Thus defendant

Peacock would be entitled to immunity. Similarly, with respect to defendants Meadows,

Sale, and Register, a prosecutor is entitled to absolute immunity for all actions he takes

while performing his function as an advocate for the government. Rowe v. Ft. Lauderdale,

279 F.3d 1271, 1279 (11 Cir. 2002) (Citing Buckley v. Fitzsimmons, 509 U.S. 259, 273, th

113 S.Ct. 2606, 2615-16, 125 L.Ed.2d 209 (1993)). 

Finally, it appears from plaintiff’s request for relief that he may also be seeking

habeas relief. If so, a civil rights claim pursuant to 42 U.S.C. § 1983 is not the proper

vehicle for doing so. The Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475,

Case No: 5:10cv165/RH/MD
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490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973), that “Congress has determined that

habeas corpus is the appropriate remedy for state prisoners attacking the validity of the

fact or length of their confinement, and that specific determination must override the

general terms of § 1983.” Regardless of the label plaintiff may place on the action, any

challenge to the fact or duration of a prisoner's confinement is properly treated as a habeas

corpus claim. Prather v. Norman, 901 F.2d 915, 918-19 n.4 (11 Cir. 1990) (per curiam); th

McKinnis, 693 F.2d at 1057. Additionally, 28 U.S.C. § 2254(b) requires that before a

federal court may consider a petition for writ of habeas corpus, a state prisoner must first

present to the state courts for consideration each issue upon which the petitioner seeks

review in federal court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379

(1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). 

If, after reviewing the foregoing, plaintiff chooses to file an amended complaint, he

must completely fill out a new civil rights complaint form, marking it “Amended Complaint”

and placing this case number on the form. Plaintiff must limit his allegations to claims

related to the same basic incident or issue and name as defendants only those persons

who are responsible for the alleged constitutional violations. Plaintiff must place their

names in the style of the case on the first page of the civil rights complaint form, and

include their addresses and employment positions in the “Parties” section of the form. In

the statement of facts, plaintiff should clearly describe how each named defendant is

involved in each alleged constitutional violation, alleging the claims as to each defendant

in separately numbered paragraphs and including specific dates and times of the alleged

unconstitutional acts. The facts relating to each defendant should be set out clearly and

in enough detail to support the legal conclusions in the complaint. Randall v. Scott, 610

F.3d 701, 709 (11 Cir. 2010). If plaintiff cannot state exactly how a particular defendant th

harmed him, he should delete or drop that person as a defendant from his complaint. In

the section entitled “Statement of Claim,” plaintiff must state what rights he contends have

been violated, and he must provide support in the statement of facts for the claimed

violations. Plaintiff is advised that the amended complaint must contain all of his

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allegations because matters not set forth in the amended pleading are deemed to have

been abandoned. Local Rule 15.1, Northern District of Florida. 

Plaintiff should file the amended complaint with an original signature with the Court

and keep an identical copy for himself. Plaintiff should not file a memorandum of law or

otherwise provide citations to statutes and cases, and he should not file exhibits as

evidentiary support for his complaint. The court will notify plaintiff when memoranda and

exhibits are necessary, such as prior to trial or in conjunction with a motion for summary

judgment. Furthermore, plaintiff should not submit service copies of his complaint unless

and until the court directs him to do so. Finally, plaintiff is advised that discovery is

premature at this stage of the case and plaintiff should not do any discovery without leave

of court.

Accordingly, it is ORDERED:

1. The clerk of court is directed to forward to the plaintiff a civil rights complaint form

for use in actions under 42 U.S.C. §1983. 

2. The plaintiff shall have twenty-eight (28) days in which to file an amended civil

rights complaint, which shall be typed or clearly written and submitted on court forms.

3. Failure to submit an amended complaint as instructed will result in a

recommendation of dismissal of this action.

DONE AND ORDERED this 21st day of October, 2010.

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 5:10cv165/RH/MD