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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.

ORDER and

REPORT AND RECOMMENDATION

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. 

Since plaintiff is proceeding in forma pauperis, the court is required to dismiss the

case at any time if it determines that the “action or appeal” 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.A. § 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). 

“[T]he statute accords judges not only the authority to dismiss a claim based on an

indisputably meritless legal theory, but also the unusual power to pierce the veil of the

complaint’s factual allegations and dismiss those claims whose factual contentions are

clearly baseless.” Id., 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). 

Dismissals on this ground may be ordered when the legal theories are “indisputably
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meritless,” or when the claims rely on factual allegations that are “clearly baseless.” Id. at

327, 109 S.Ct. at 1833; Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118

L.Ed.2d 340 (1992); Williams v. Secretary for Department of Corrections, 131 Fed. Appx.

682, 2005 WL 1130351 (11 Cir. 2005) (citing Carroll v. Gross, 984 F.2d 392, 393 (11 Cir. th th

1993) (per curiam) (internal quotations omitted)). 

Because the language of § 1915(e)(2)(B)(ii) tracks the language of FED. R. CIV. P.

12(b)(6), 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 the plaintiff. See Pielage v. McConnell, 516 F.3d 1282 (11 Cir. 2008); th

Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11 Cir. 2006); Davis th

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

more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of

action” and his complaint must include factual allegations sufficient “to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65,

1973 n.14, 167 L.Ed.2d 929 (2007) (declining to apply a heightened pleading standard, 

and abrogating Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“a

complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief.” 355 U.S. at 45-46, 78 S.Ct. 99.)) A complaint is subject to dismissal for

failure to state a claim “when its allegations, on their face, show that an affirmative defense

bars recovery on the claim.” Douglas v. Yates, 535 F.3d 1316, 1321 (11 Cir. 2008) th

(quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003)). Leave to amend a

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complaint is futile when the complaint as amended would still be properly dismissed or be

immediately subject to summary judgment for the defendant. Cockrell v. Sparks, 510 F.3d

1307, 1310 (11 Cir. 2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11 th th

Cir. 2004)). Upon review of plaintiff’s complaint, the court concludes that plaintiff has not

presented an actionable claim and that sua sponte dismissal is therefore warranted. 

Vanderberg v. Donaldson, 259 F.3d 1321, 1323 (11 Cir. 2001). th

Case No: 5:10cv165/RH/MD
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Plaintiff names six defendants in this action: Prosecutors Steve Meadows and

Robert Sale, Public Defender Stan Peacock, Charles Bostick and LeVon Bostick and

Britney Kennedy. It appears from the complaint that plaintiff is a convicted sex offender

in Washington state who pleaded guilty to charges of lewd and lascivious molestation of

an individual under the age of 16. He alleges that state prosecutor Steve Meadows should 1

not have allowed the case against him to proceed, and that Robert Sale engaged in a

malicious and slanderous attack on the plaintiff, who was the defendant in that case, and

chose to remain on the case even after being reprimanded by the Florida Bar. Stan

Peacock allegedly misled the then-defendant about the contents of the plea agreement he

signed. Charles Bostick and LeVon Bostick, the parents of the alleged victim allegedly

coerced their daughter to lie to the police and perjured themselves about the incident,

respectively. Britney Kennedy, the alleged victim, purportedly lied to the police in order

to move in with her then boyfriend, now husband. As proof of his innocence, plaintiff

contends that there were witnesses who could have testified as to the falsity of the

allegations concocted by the Charles Bostick. Plaintiff seeks the removal of his name from

the sexual offenders registry, sealing or expungement of his records, an injunction against

further confinement, and damages for pain and suffering, libel, defamation of character,

slander, wrongful arrest, false imprisonment and libel. 

Plaintiff's claim regarding alleged irregularities in his criminal conviction is not

actionable under section 1983 since it is in the nature of habeas corpus. The Supreme

Court stated in Preiser v. Rodriguez, 411 U.S. 475, 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

According to the Florida Departm ent of Corrections website, plaintiff was sentenced on this charge

1

to a term of one year im prisonm ent on August 20, 2007. He was released from custody on M arch 1,

2008, and returned to custody on February 3, 2010 for what appears to be a violation of sex offender

reporting requirem ents. His projected release date is October 19, 2014. See

http://www.dc.state.fl.us/ActiveInm ates/detail.asp?Bookm ark=2&From =list&SessionID=244743238

Case No: 5:10cv165/RH/MD
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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); McKinnis v. Mosley, 693 F.2d 1054, 1056-57 th

(11 Cir. 1982). Additionally, 28 U.S.C. § 2254(b) requires that before a federal court may

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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). The remedy of an extraordinary

petition, specifically, a writ of mandamus or of habeas corpus, is available in the Florida

Courts for plaintiff to pursue relief for his gain time issues. See FLA. CONST., art. V, § 5;

FLA. R. CIV.P. 1.630, FLA. R.APP.P. 9.100. Further, plaintiff may file an appeal at the state

level from an adverse decision of the lower court in this matter. See FLA. CONST., art. V,

§ 4; FLA. R. APP. P. 9.110.

Based upon the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114

S.Ct. 2364, 129 L.Ed.2d 383 (1994), the claim should be dismissed. The Court in Heck

stated 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 486-487, 114 S.Ct. at 2372. 

Such actions would include those in which the plaintiff seeks damages directly attributable

to his conviction or confinement, plaintiff must negate an element of the offense of which

he has been convicted in order to prevail, or plaintiff contends that the statute under which

he was convicted is unconstitutional. Id.; Hughes v. Lott, 350 F.3d 1157, 1160 (11 Cir. th

2003); cf. Porter v. White, 438 F.3d 1294 (11 Cir. 2007) (plaintiff brought § 1983 action th

after criminal conviction was overturned due to Brady violation). Absent such an

invalidation, the section 1983 suit must be dismissed. Heck, 512 U.S. at 486-487, 114

S.Ct. at 2372; see also Harden v. Pataki, 320 F.3d 1289, 1295 (11 Cir. 2003); Hughes,

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350 F.3d at 1160. Here, plaintiff seeks damages that are clearly attributable to his

allegedly wrongful conviction. As such, his claim must be dismissed. 

Case No: 5:10cv165/RH/MD
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Because plaintiff cannot successfully bring his action as a violation of 42 U.S.C. §

1983 at this time, his case should be dismissed. However, this dismissal should be without

prejudice in the event the plaintiff obtains an invalidation of the conviction he assails

through the instant action. 

Accordingly, it is ORDERED:

Plaintiff’s motion for appointment of counsel (doc. 21) be denied as moot in light of

this recommendation.

And it is respectfully RECOMMENDED:

That this cause be dismissed without prejudice for failure to state a claim pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii).

At Pensacola, Florida, this17th day of November, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES 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 thereof. 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 objections shall be served upon 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 (11 Cir. 1988). th

Case No: 5:10cv165/RH/MD