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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 PENSACOLA DIVISION

DOUGLAS LOWERY, JR.,

Plaintiff,

vs. Case No. 3:10cv456/MCR/EMT

LAURA SPENCER COLEMAN

Defendant.

REPORT AND RECOMMENDATION

This cause filed pursuant to Title 42 United States Code Section 1983 is presently before the

court on plaintiff’s civil rights complaint (doc. 1). Leave to proceed in forma pauperis was granted

and no initial partial was assessed (doc. 10). Plaintiff’s complaint form is incomplete as he has

omitted page four of the form which is designed to provide information about his prior litigation

history. He will not be required to amend to correct this deficiency, however, as his complaint is

subject to dismissal. 

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). 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 (11th Cir. 2008); Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir.
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2006); Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). Plaintiff must

allege 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 (11th

Cir. 2008) (quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)). Leave to amend a

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 (11th Cir. 2007) (citing Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1263 (11th 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 (11th Cir. 2001).

Plaintiff is currently incarcerated at the Santa Rosa County Jail. His allegations concern the

allegedly deficient performance of court-appointed counsel, Laura Spencer Coleman, in representing

him in a criminal case. He alleges that his Sixth Amendment rights to a speedy trial and to effective

representation of counsel have been denied. He seeks monetary damages and release from

incarceration. 

Plaintiff’s request for release from incarceration is not properly before this court. 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.” 411 U.S. at 490, 93 S. Ct. at 1836. 

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

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915, 918–19 n.4 (11th Cir. 1990) (per curiam); McKinnis v. Mosley, 693 F.2d 1054, 1057 (11th Cir.

1982). 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). 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. 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

486–87, 114 S. Ct. at 2372. Such actions would include those in which the plaintiff seeks damages

directly attributable to his conviction or confinement, the plaintiff must negate an element of the

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

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

Cir. 2003); cf. Porter v. White, 438 F.3d 1294 (11th Cir. 2007) (plaintiff brought § 1983 action 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 486–87, 114 S. Ct. at 2372; see also Harden v.

Pataki, 320 F.3d 1289, 1295 (11th Cir. 2003); Hughes, 350 F.3d at 1160. And, to the extent plaintiff

seeks an order affecting the ongoing state proceeding in his case, the complaint is also subject to

dismissal, as issuance of such an order would be contrary to law. 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

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673, 677-678 (11th Cir. 1992). 

Finally, even if plaintiff could bring this case under § 1983, his claim for monetary damages

for mental anguish he suffered as a result of defendant’s allegedly inadequate representation would

also be prohibited by 42 U.S.C. § 1997e(e). Title 42 U.S.C. § 1997e(e) provides that “[n]o Federal

civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for

mental or emotional injury suffered while in custody without a prior showing of physical injury.” 

This is an affirmative defense, not a jurisdictional limitation. Douglas v. Yates, 535 F.3d 1316, 1321

(11th Cir. 2008). 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.” Yates, 535 F.3d at 1321

(quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)). As the Eleventh Circuit has

explained: “[Section] 1997e(e) applies only to lawsuits involving (1) Federal civil actions (2)

brought by a prisoner (3) for mental or emotional injury (4) suffered while in custody.” Napier v.

Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). The Eleventh Circuit has determined that “the phrase

‘Federal civil action’ means all federal claims, including constitutional claims.” Napier, 314 F.3d

at 532. This § 1983 action brought by plaintiff is a “Federal civil action” under this definition. 

Further, it is undisputed that plaintiff filed his complaint while imprisoned. Plaintiff’s complaint

alleges only “mental anguish” which satisfies the third predicate for the application of § 1997e(e). 

Finally, the harm complained of occurred while plaintiff was in custody, so as to satisfy the fourth

predicate.

Because plaintiff cannot successfully bring his action as a violation of 42 U.S.C. § 1983, the

court is satisfied that plaintiff’s complaint lacks an arguable basis in law or fact and that it fails to

state a claim. 

Accordingly, it is respectfully RECOMMENDED:

That this cause be dismissed for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii).

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At Pensacola, Florida, this 14th day of February, 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH TIMOTHY

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 (11th Cir. 1988).

Case No: 3:10cv456/MCR/EMT