Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SEAN REILLY,

Plaintiff,

vs. Case No. 4:10cv313-WS/WCS

JENNIFER DAVIS,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, who was an inmate at the time of case initiation but who has been

released, see doc. 4, has filed an amended civil rights complaint. Doc. 9. Plaintiff is

proceeding pro se and was granted leave to proceed in forma pauperis. Docs. 3, 6. 

Now that Plaintiff has been released from jail, he should be required to submit a

supplemental in forma pauperis motion to demonstrate his continued entitlement to in

forma pauperis status. If this report and recommendation is adopted, there is no need

to do so. If the recommendation is rejected, Plaintiff should be provided the appropriate

financial affidavit which he should be directed to return to continue this litigation with in

forma pauperis status.
Page 2 of 9

Plaintiff alleges that on January 19, 2007, an injunction against him was issued. 

He indicates that three Defendants were responsible for the injunction: Jennifer Davis

(an Identification Technician with the Florida Department of Law Enforcement), Eric

Abrahamsen (assistant state attorney), and Chris Del Marco (an attorney who

represented Defendant Davis). Doc. 9, p. 7. Plaintiff contends his due process rights

were violated "because there was no hearing to test the validity of the injunction or to

modify the injunction so that all public places would be removed from the injunction." Id.

He contends the injunction infringed his freedom of movement and freedom of

association or expression because he was restricted from being within 500 feet of ten or

more nightclubs and bars in this community, as well as Florida State University, where

Plaintiff states he was employed at the time. Id. Plaintiff was arrested for violating the

allegedly unconstitutional injunction on February 6 or 7, 2007, while at a public bar. Id.

Plaintiff was also "forced to resign from his position at Florida State University because

he was continuously being threatened by staff and police that he would be arrested if he

came to work because he could be in violation of this injunction." Id., at 7-8. 

Plaintiff claims a Fourth Amendment violation stemming from his arrest, and also

asserts a due process violation because he was "never afforded an opportunity to go in

front of a judge to argue the validity of the injunction or to remove the public places of

the injunction before making the injunction permanent." Id., at 8. Plaintiff contends his

incarceration deprived him of his liberty, and since the injunction "infringed on [his]

freedom of movement, [he] was forced to move out of Tallahassee in order to live a life

of liberty and not continue to be arrested for going to public properties." Id. Plaintiff

states he was "charged with violation of repeat violence injunction, he was convicted on

Case No. 4:10cv313-WS/WCS
Page 3 of 9

November 2, 2007, and has since filed a petition for writ of habeas corpus to vacate the

conviction as the public places were too overbroad or overreaching to be listed on the

injunction restricting Plaintiff's constitutionally protected behavior." Id., at 8. 

Plaintiff alleges Defendant Reynolds, the state court judge who issued the

injunction, "abused his authority or discretion by allowing a moving party to egregiously

infringe on the rights' of opposing party for no legitimate purpose." Id., at 8. Plaintiff

advises that the injunction is "currently still active and in full force and effect." Id., at 9. 

Plaintiff states that he has also filed a "request for a writ of mandamus to remove all

public properties, i.e. bars/nightclubs off of the injunction." Id. As relief in this case,

Plaintiff seeks injunctive relief "to protect" him from "future attacks" and he seeks

compensatory and punitive damages as well. Doc. 9, p. 10. 

Under the Rooker-Feldman doctrine, this Court is prohibited from reviewing state

court final judgments as that is a task reserved to state appellate courts or, as a last

resort, in the United States Supreme Court. District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust

Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see Casale v. Tillman, 558 F.3d

1258, 1260 (11th Cir. 2009). "Federal district courts . . .are empowered to exercise

original, not appellate, jurisdiction." Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

544 U.S. 280, 283, 125 S.Ct. 1517, 1521 (2005). Plaintiff's constitutional claims in this

case challenge the lawfulness of a state court injunction, a final order in state court. 

Plaintiff lost in state court, and this court cannot review that loss. His claims,

necessarily, are "inextricably intertwined" with the judgment of the state court that both

entered the injunction, and convicted Plaintiff of violating the injunction. 

Case No. 4:10cv313-WS/WCS
Page 4 of 9

It is true that the doctrine does not apply "where a party did not have a

'reasonable opportunity to raise his federal claim in state proceedings.' " Casale v.

Tillman, 558 F.3d at 1260, quoting Powell v. Powell, 80 F.3d 464, 467 (11th Cir. 1996)

(internal quotation marks omitted). Plaintiff has alleged in the amended complaint that

he "was never afforded an opportunity to go in front of a judge to argue the validity of

the injunction or to remove the public places of the injunction before making the

injunction permanent." Doc. 9, p. 8. Judicial notice is taken that the statement is not

true. Court records of the Leon County Courthouse are public records and available

online. Those records reveal that the injunction about which Plaintiff complains was

entered on January 19, 2007. In case 2007 DR 0153, petitioner Jennifer Davis filed a

petition for injunction for protection against repeat violence on January 19, 2007. A

temporary injunction was issued that same day and a hearing was noticed. After

several rescheduled hearings, Plaintiff had a hearing on April 12, 2007. The docket for

the state court reveals Plaintiff was present with his attorney, Paul Villenueve, and

Jennifer Davis (who is Defendant in this case, but was the petitioner in state court) was

represented by attorney Chris Delmarco. A final injunction was entered against Plaintiff

on April 12, 2007. Plaintiff was, thus, afforded an opportunity to argue to be heard. 

Furthermore, Plaintiff filed a motion to dissolve the injunction on December 14,

2007. The motion was denied on January 28, 2008. Again, on July 27, 2009, Plaintiff

filed another motion to dissolve the injunction. That motion was denied as well, after a

hearing held on August 10, 2009, where the petitioner was present, and Plaintiff was

"present by phone." Thereafter, Plaintiff filed a motion to modify the injunction on

August 21, 2009. Similarly, a hearing was held on October 26, 2009, where petition

Case No. 4:10cv313-WS/WCS
Page 5 of 9

was present, and Plaintiff was "present by phone," and the motion for modification was

denied. Plaintiff was advised that he could refile the motion to modify when he was

released from jail and "off community control." Thereafter, Plaintiff filed another motion

to modify the injunction to remove the public property portion of the injunction in June,

2010. That motion appears to still be pending.

Since Plaintiff had a full opportunity to present evidence and argument in state

court, the Rooker-Feldman doctrine applies. As stated in Exxon Mobil Corp. while

explaining the narrow reach of the doctrine, the Court said, "The Rooker-Feldman

doctrine, we hold today, is confined to cases of the kind from which the doctrine

acquired its name: cases brought by state-court losers complaining of injuries caused

by state-court judgments rendered before the district court proceedings commenced

and inviting district court review and rejection of those judgments." 544 U.S. at 284, 125

S.Ct. at 1521-22. That is precisely the situation here. Plaintiff lost in having the

injunction dismissed, and claims injury from the validity of that injunction. Plaintiff

invites this Court to overturn the injunction and review the merits of the injunction as to

his constitutional challenge, an invitation this Court cannot except. This Court lacks

subject matter jurisdiction to review that injunction and Plaintiff's avenue of relief is in

the state courts of Florida.

That being said, if the true state of affairs is that the injunction is not final

because review is pending in the state court, the Rooker-Feldman doctrine is not

applicable. Notably, the state court docket discloses that Plaintiff is pursuing relief to

have the state court dissolve or modify the injunction. Furthermore, Plaintiff alleged in

the amended complaint, doc. 9, that he is currently pursuing a writ of mandamus to

Case No. 4:10cv313-WS/WCS
Page 6 of 9

overturn the injunction. If the order being challenged is under review in state court, then

this Court should instead abstain from reviewing the order and its constitutionality under

the Younger abstention doctrine.

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

enjoin pending 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).1

Under Younger, this Court should abstain from intervention and review of the

merits of this case. Plaintiff has an avenue before him where he may adequately

challenge the constitutionality of the injunction. This Court may not enjoin those state

court proceedings.

1

 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. Although Younger applied explicitly only to state criminal

proceedings, the Supreme Court has expanded the applicability of the Younger doctrine

to some civil proceedings as well. See Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.

1200, 43 L.Ed.2d 482 (1975) (state proceeding to enforce a nuisance statute); Juidice v.

Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (judicial contempt

proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977)

(civil action for return of welfare payments to state agency); Moore v. Sims, 442 U.S.

415, 99 S.Ct. 2371 (1979) (state child custody proceeding).

Case No. 4:10cv313-WS/WCS
Page 7 of 9

Finally, Plaintiff's challenge to the constitutionality of the injunction cannot be

decided in this court because Plaintiff was convicted of a crime for violating the

injunction. Plaintiff acknowledges his conviction has not been overturned. 

In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383

(1994), the United States Supreme Court held that a civil rights action under § 1983 that

necessarily calls into question the validity of a conviction or sentence could not accrue

until the plaintiff could demonstrate that the conviction or sentence had been reversed,

expunged, or otherwise declared invalid. Heck, at 487, 114 S.Ct. at 2372. This has

been referred to as the "favorable termination" requirement. See Uboh v. Reno, 141

F.3d 1000, 1004-06 (11th Cir. 1998). Here, Plaintiff cannot demonstrate the favorable

termination requirement because Plaintiff acknowledges he was convicted of violating

the injunction on November 2, 2007. Doc. 9, p. 8. Plaintiff currently has a habeas

petition pending which challenges that conviction on the constitutional grounds that "the

public places were too overbroad or overreaching . . . restricting Plaintiff's

constitutionally protected behavior." Id. Plaintiff's challenge to the constitutionality of

the injunction is a collateral attack on the validity of the conviction. This Court cannot

grant relief in a § 1983 civil rights action that would undermine Plaintiff's conviction. 

Indeed, Plaintiff has several § 2254 petitions pending in this court. Case No.

4:09cv442-SPM/WCS; case no. 4:10cv310-SPM. 

Finally, dismissal is warranted because Defendant Reynolds is protected by

absolute immunity from Plaintiff's claim for damages. When a judge is acting in his

judicial capacity, he is entitled to absolute immunity from liability for damages under §

1983 unless he acts in the "clear absence of all jurisdiction." Stump v. Sparkman, 435

Case No. 4:10cv313-WS/WCS
Page 8 of 9

U.S. 349, 355-357, 98 S.Ct. 1099, 1104-05, 55 L. Ed.2d 331 (1978). Under the Stump

v. Sparkman test for determining judicial immunity, the court must consider "whether the

judge dealt with the plaintiff in a judicial capacity" and "whether the judge acted in the

'clear absence of all jurisdiction.' ” Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th

Cir. 1996), citing Stump, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978); In this

case, Defendant Reynolds was acting in his judicial capacity and he clearly had

jurisdiction over the Plaintiff. Therefore, because Judge Reynolds' conduct satisfies

both prongs of the Stump test for judicial immunity, the claims against him must be

dismissed.

Additionally, Assistant State Attorney Abrahamsen is also protected by absolute

immunity. The law is clear that prosecutors are absolutely immune from suit under the

civil rights statutes for their actions which are "intimately associated with the judicial

phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984,

994-995, 47 L.Ed.2d 128 (1976); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir.

1980). Such actions include "initiating a prosecution and in presenting the State's

case." Imbler, 424 U.S. at 431, 96 S. Ct. at 995. Thus, Plaintiff cannot pursue his claim

against Defendant Abrahamsen either as prosecutors are immune from § 1983 suits. 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

amended complaint, doc. 9, be DISMISSED for lack of subject matter jurisdiction as

established by the Rooker-Feldman doctrine, or in the alternative, because this Court

should abstain under the Younger doctrine, and because Defendants Defendants

Abrahamsen and Reynolds have immunity from § 1983 claims for damages, and for 

Case No. 4:10cv313-WS/WCS
Page 9 of 9

failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §

1915(e)(2) because Plaintiff's claim is barred by Heck v. Humphrey.

IN CHAMBERS at Tallahassee, Florida, on August 26, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv313-WS/WCS