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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ERIC LEE ERICKSON,

Plaintiff,

vs. Case No. 4:11cv47-RH/WCS

PAMELA JO BONDI,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, has filed a civil rights complaint under 42

U.S.C. § 1983. Doc. 1. In a separate order entered this day, I have granted Plaintiff's

motion for leave to proceed in forma pauperis, doc. 2, and the complaint has been

reviewed pursuant to 28 U.S.C. § 1915A. 

Plaintiff is currently detained in the Leon County Jail, and sues the Attorney

General for the State of Florida. Doc. 1, p. 2. Plaintiff states, however, that he wants to

filed this complaint "against all Tallahassee criminal division attorneys" because "no

attorney representing a defendant at first open court arraignment." Id., at 5. Plaintiff

alleged that the judge read the "probable cause charges" and no attorney challenged
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probable cause or even spoke to the defendant. Id. Furthermore, when Plaintiff says

he tried to speak and defend himself, the judge told Plaintiff to "shut up." Id. 

If Plaintiff seeks to challenge his detention and custody, that must be done

through a habeas petition, after exhausting state court remedies, and not through a civil

rights case. There are "two broad categories of prisoner petitions: (1) those

challenging the fact or duration of confinement itself; and (2) those challenging the

conditions of confinement." Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36

L.Ed.2d 439 (1973); see also Hill v. McDonough, 126 S.Ct. 2096, 165 L.Ed.2d 44

(2006)(holding that challenge to lethal injection procedures may be brought in § 1983

action). Habeas corpus is the exclusive remedy for a prisoner who challenges "the fact

or duration of his confinement and seeks immediate or speedier release . . . ." Heck v.

Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 2369 (1994). Where a litigant is not

challenging the fact or duration of confinement, but rather the conditions of that

confinement, then civil rights is the proper avenue of relief. See Porter v. Nussle, 122

S.Ct. 983, 989, 122 S.Ct. 983, 990, 152 L.Ed.2d 12 (2002), citing McCarthy v. Bronson,

500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) and Preiser v. Rodriguez, 411

U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The relief requested by Plaintiff

cannot be provided to him as this federal court cannot direct the appointment of a

particular attorney to represent Plaintiff in state court. 

Furthermore, there is no allegation of any wrong doing by the Attorney General

for the State of Florida. Plaintiff's case is, instead, being prosecuted by the State

Attorney's Office for the Second Judicial Circuit (as Plaintiff is detained in the Leon

Case No. 4:11cv47-RH/WCS
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County Jail). Plaintiff has not named the proper parties, nor has he alleged any wrong

doing by the Defendant. This case must be dismissed.

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

complaint, doc. 1, be DISMISSED for failure to state a claim upon which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and

recommendation direct the Clerk of Court to note on the docket that this cause was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

IN CHAMBERS at Tallahassee, Florida, on February 18, 2011.

 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. 4:11cv47-RH/WCS