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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DOUGLAS H. LOWERY, JR.,

Plaintiff,

vs. 3:10cv457/MCR/MD

MICHELLE JENSEN,

Defendant.

_____________________________________________________________________

REPORT AND RECOMMENDATION

This cause is before the court on plaintiff’s complaint filed pursuant to 42 U.S.C. §

1983. (Doc. 1). Leave to proceed in forma pauperis was granted and no initial partial filing

fee was assessed. (Doc. 8). Upon review of the complaint, the court concludes that

plaintiff has not presented an actionable claim and that dismissal is warranted. 

Since 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.A. § 1915(e)(2)(B). A complaint is frivolous under section 1915(d)

“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. at 327, 109

S.Ct. at 1833, or when the claims rely on factual allegations that are “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 (11 Cir. 1997). The th

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

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

The complaint may be dismissed only if it appears beyond doubt that plaintiff can prove no

set of facts that would entitle him to relief. Brown v. Budget Rent-A-Car Systems, Inc., 119
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F.3d 922, 923 (11 Cir. 1997). Upon review of plaintiff's complaint, the court concludes th

that plaintiff’s complaint does not present an actionable claim under § 1983.

Plaintiff is presently incarcerated at Santa Rosa County Jail. He sues Michelle

Jenson, who is identified as a state attorney in the First Judicial Circuit. Plaintiff claims that

he was arrested on March 14, 2009 and although the charges against him were dropped

by Alva Lowery (presumably the victim/complainant) on June 24, 2009, Ms. Jenson is still

pursuing charges against the plaintiff. Plaintiff asks that the case against him be dismissed

and he be released from jail. 

Although plaintiff filed this complaint pursuant to 42 U.S.C. § 1983, the relief he

seeks is not properly sought under 42 U.S.C. § 1983 as it is in the nature of habeas

corpus. The Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475, 490 (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 his confinement is properly

treated as a habeas corpus claim. Prather v. Norman, 901 F.2d 915, 918-19 n.4 (11 Cir. th

1990) (per curiam); McKinnis v. Mosley, 693 F.2d 1054, 1056-57 (11 Cir. 1982); Johnson th

v. Hardy, 601 F.2d 172, 173 (5th Cir. 1979). Additionally, 28 U.S.C. § 2254(b) requires that

before a federal court may consider a petition for writ of habeas corpus, the petitioner 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). Thus,

plaintiff should file a separate habeas corpus petition in order to challenge the fact or

duration of his confinement after first exhausting any available state court remedies.

Furthermore, insofar as plaintiff seeks an order affecting an ongoing state

proceeding in his case, the complaint is subject to dismissal. Federal courts cannot

intervene in ongoing criminal proceedings except in the most extraordinary circumstances

and upon a clear showing of both great and immediate harm. Younger v. Harris, 401 U.S.

37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see also, Hicks v. Miranda, 422 U.S. 332, 349

(1975); Luckey v. Miller, 976 F.2d 673, 677-678 (11 Cir. 1992); cf. Abusaid v. Hillsborough

th

County Bd. Of County Com’rs, 405 F.3d 1298, 1315 (11 Cir. 2005) (application of th

Case No: 3:10cv457/MCR/MD
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Younger to a case where the state criminal proceedings ended prior to filing the case was

error). The Younger abstention doctrine prevents federal courts “from being the grand

overseers of state courts and court-like administration.” Wexler v. Lepore, 385 F.3d 1336,

1341 (11 Cir. 2004). Therefore, because the state criminal proceedings are underway at th

this time, abstention is also appropriate.

Accordingly, it is respectfully RECOMMENDED:

That this cause be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii), and the clerk be directed to close the file.

At Pensacola, Florida this 3 day of January, 2011. rd

 /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: 3:10cv457/MCR/MD