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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TAVARISS DAVIS,

Plaintiff,

vs. Case No. 4:11cv149-MP/WCS

JUDGE STEPHEN MURPHY, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, filed a civil rights

complaint under 42 U.S.C. § 1983. Doc. 1. Plaintiff's motion for in forma pauperis

status was granted, docs. 2, 4, and Plaintiff has now paid the assessed initial partial

filing fee. Accordingly, the complaint may now be reviewed pursuant to 28 U.S.C. §

1915A. 

Plaintiff brings this case against three Defendants: Judge Stephen Murphy, a

state court judge, Timothy Murphy, a Detective with the Perry Police Department, and

Elise Blair, an assistant district attorney. Doc. 1, p. 2. In sum, Plaintiff contends that

Judge Murphy should have recused himself from this case due to close familial

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relationship with Detective Murphy. Plaintiff claims Prosecutor Blair violated her ethical

and professional responsibilities in prosecuting him and Plaintiff contends he is being

denied his right to a fair trial under the Due Process Clause. 

Plaintiff asserts that he is in jail awaiting trial. Doc. 1, p. 7. He was "originally

arrested on" March 23, 2010, and after posting bond, he indicates he was returned to

jail on October 4, 2010. Id., at 6. Plaintiff's request for relief is that "all charges be

dismissed less there be factual evidence to substantiate such allegations." Id., at 8. 

Under the Younger1 abstention doctrine, "federal district courts must refrain from

enjoining pending state court proceedings except under special circumstances." Old

Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1261 (11th Cir. 1997), 

Courts should abstain from granting injunctive relief under Younger where: (1) the state

proceeding is ongoing; (2) the proceeding implicates an important state interest; and (3)

there is an adequate opportunity to raise a constitutional challenge in the state court

proceedings. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S.

423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Here, the state criminal

proceedings are ongoing as Plaintiff is awaiting trial. The ability to prosecute violations

of state criminal law is an important state interest, and Plaintiff may bring his due

process challenges to the fairness of his trial through his defense counsel. This Court

must abstain from involving itself in Plaintiff's ongoing state criminal proceedings.

Moreover, Plaintiff may not bring a civil rights claim for monetary damages

against a state court judge for his actions as a judge because a judge is protected by

absolute judicial immunity. Stump v. Sparkman, 435 U.S. 349, 355-357, 98 S.Ct. 1099,

1

 Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

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1104-05, 55 L. Ed.2d 331 (1978). While I note that Plaintiff has not explicitly sought

monetary damages, there is no ability to seek such damages against this Defendant,

and Plaintiff does not have a valid civil rights claim that can proceed against this

Defendant.

Plaintiff may also not bring a claim against the detective for testifying in court

against Plaintiff because he is protected by witness immunity. See Briscoe v. LaHue,

460 U.S. 325, 341-42, 103 S. Ct. 1108, 1119, 75 L. Ed. 2d 96 (1983) (holding that police

officers who give perjured testimony in judicial proceedings are immune from suit and

noting that "[s]ubjecting government officials, such as police officers, to damages liability

under § 1983 for their testimony might undermine not only their contribution to the

judicial process but also the effective performance of their other public duties."); see

also Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999). Likewise, a prosecutor

has absolutely immunity from suit under the civil rights statutes for 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 sue any of the three Defendants named in this case.

Moreover, Plaintiff's request for relief cannot be granted in this civil rights case. 

Plaintiff wants "all charges" against him to "be dismissed." Doc. 1, p. 8. A civil rights

case cannot attack a criminal conviction, nor can it seek to prevent a conviction by

having charges dismissed. 

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Accordingly, there is no relief that can be granted Plaintiff in this case. Plaintiff

has not named a Defendant who can appropriately be sued, nor can Plaintiff seek the

dismissal of criminal charges against him, and this court must abstain from interfering in

ongoing state criminal proceedings. 

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 May 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. 4:11cv149-MP/WCS

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