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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STEPHEN FREDRIC GANSTINE,

Plaintiff,

vs. Case No. 4:11cv129-MP/WCS

JOHNNY WILLIAMS, 

and ARMANDO GARCIA,

Defendants.

 /

ORDER and SECOND REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983. 

Doc. 1. On April 8, 2011, I entered a report and recommendation to dismiss this case

for failure to state a claim. Doc. 6. Plaintiff has now filed a motion for reconsideration,

doc. 7, and a motion for leave to file an amended complaint, doc. 8. 

Plaintiff states in his motion, doc. 7, that he wishes to file an amended complaint

and he believes he properly named Defendant Williams, the County Administrator, as a

Defendant. Plaintiff also contends that Gadsden County, Florida, should also have

been named as a Defendant. Doc. 7, p. 1. Plaintiff contends Defendant Williams and

the County are responsible for the actions of the "district" attorney's office [sic, state

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attorney]. Id., at 2. Plaintiff also asserts that he should be able to sue his defense

counsel, Defendant Armando Garcia, for failure to provide effective assistance of

counsel. Doc. 7, p. 2. 

Plaintiff contends that he is precluded from challenging the criminal judgments

against him because he has completed his sentence. Id., at 3. Plaintiff that this case is

"an honest, last ditch effort to correct a wrongful conviction." Id., at 4. Plaintiff requests

that this Court "determine if Plaintiff received a fair trial, and to assess damages if" the

Court finds that Plaintiff's rights were violated.1 Id. 

Plaintiff's motion for leave to file an amended complaint, doc. 8, seeks to retain

the claims against Defendants Williams and Garcia, and add Gadsden County, Florida,

as a Defendant. Id., at 1. Plaintiff contends the County has the responsibility to

guarantee that every criminal defendant tried there receives a fair trial. Id., at 2. 

Plaintiff's motion for reconsideration is granted to the extent that I have reviewed

the instant motions and the prior report and recommendation. However, Plaintiff's

motion does not provide a basis for vacating the prior report and recommendation. The

reasons provided there remain valid as explained again below. 

Plaintiff attempted to sue Johnny Williams, the County Administrator for Gadsden

County, Florida, and Armando Garcia, his defense attorney. Doc. 1, p. 2. Plaintiff

alleges that the prosecutor, identified as Mr. Johnson, violated Plaintiff's constitutional

1

 Plaintiff's appeal of his conviction was affirmed per curiam, Ganstine v. State,

977 So.2d 582 (Table), 2008 WL 795765 (Fla. 1st DCA, March 27, 2008), and his

"petition alleging ineffective assistance of appellate counsel [was] denied on the merits"

in Ganstine v. State, 29 So.3d 431 (Fla. 1st DCA March 5, 2010). Plaintiff's Rule 3.850

motion was unsuccessful and his motion for rehearing was denied on November 18,

2010. Ganstine v. State, 48 So.3d 54 (Table), 2010 WL 760228 (Fla. 1st DCA March 5,

2010).

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rights by commenting on Plaintiff's prior silence and challenging Plaintiff's version of

events which he testified to during the trial. Id., at 7. Plaintiff also contends that

Defendant Garcia, his court-appointed defense attorney, provided ineffective assistance

of counsel. Id., at 7-8. 

Plaintiff presented no allegations of unlawful actions by Defendant Williams. 

Because this Defendant has no involvement in the issues raised by Plaintiff, and

because the doctrine of respondeat superior does not provide a basis for recovery

under § l983, the complaint must be dismissed as to Defendant Williams. Harvey v.

Harvey, 949 F.2d 1127, 1129 (11th Cir. 1992), citing Monell v. Department of Social

Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see also Collins v. City

of Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992); Pembaur v.

City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). 

Furthermore, even if Plaintiff was attempting to sue the prosecutor who handled

Plaintiff's criminal trial, the case would still have to be dismissed. That is so because

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 claims against Mr. Johnson, the prosecutor,

nor could Plaintiff bring a claim against the state attorney's office. That being the case,

Plaintiff cannot sue the County or Country Administrator indirectly for claims which

Plaintiff cannot bring against the prosecutor.

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Furthermore, as the last report and recommendation explained to Plaintiff, he

cannot bring a claim against Defendant Garcia because representation by public

defenders or retained criminal defense attorneys is not "state action" and, thus, gives

rise to no liability pursuant to § 1983 absent a conspiracy with state actors. Richardson

v. Fleming, 651 F.2d 366, 371 (5th Cir. 1981); Slavin v. Curry, 574 F.2d 1256, 1265 (5th

Cir. 1976); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). Plaintiff's claim

against Defendant Garcia must be dismissed.

Because Plaintiff cannot bring claims against any of the Defendants named, the

case should be dismissed. Because Plaintiff lacks a sufficient basis to bring the claims

desired in the request for leave to file an amended complaint, that motion should be

denied.

Accordingly, it is ORDERED Plaintiff's motion for reconsideration, doc. 7, is

GRANTED but the report and recommendation, doc. 6, is not vacated.

It is further RECOMMENDED that Plaintiff's complaint, doc. 1, be DISMISSED for

failure to state a claim upon which relief may be granted, and Plaintiff's motion for leave

to amend, doc. 8, be DENIED as futile.

IN CHAMBERS at Tallahassee, Florida, on May 4, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

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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. 4:11cv129-MP/WCS

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