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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

THEODORE CHAIRES,

Plaintiff,

vs. Case No. 4:11cv167-MP/WCS

STATE OF FLORIDA, 

LARRY CAMPBELL,

Defendants.

 /

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, Plaintiff's in forma

pauperis motion, doc. 2, has been granted. The complaint may now be reviewed as is

required by 28 U.S.C. § 1915A. 

Plaintiff's complaint is deficient because he has failed to set forth each factual

allegation in separately numbered paragraphs as is required by Federal Rule of Civil

Procedure 10(b). Pursuant to Rule 10(b), all statements "shall be made in numbered

paragraphs, the contents of which shall be limited as far as practicable to a statement of

a single set of circumstances." Fed. R. Civ. P. 10(b). In its present form, the complaint

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could not be appropriately responded to by the Defendants and Plaintiff provides no

numbered paragraphs for his statement of facts. 

Plaintiff's allegations are also deficient because he has not presented allegations

that may be pursued in a civil rights action. Plaintiff alleges he was arrested and

charged with two criminal offenses. Doc. 1. Plaintiff is detained in the Leon County Jail. 

Id. Plaintiff has been sentenced on the trespassing charge, but indicates that the

charge for aggravated stalking is still pending. Id. Plaintiff states that he would "like his

time applied towards his case and for" the state court to consider the fact that his wife

had previously applied for an injunction and it was denied. Id., at 5-6. In his request for

relief, Plaintiff states that he wants the state "court to observe legal grounds for [Plaintiff]

to receive [his] credit for time on the charge and to have the charge for" violating an

injunction dropped and that he be released from confinement. Id., at 7. 

Plaintiff's claims must be pursued through a habeas petition and not a civil rights

case. Plaintiff seeks release from his detention, he wants credit for time served, and to

have criminal charges dropped. That relief may not be provided in 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

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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). It is clear that a prisoner may not seek to reduce a period of confinement

through a civil rights action. Preiser, 411 U.S. at 500, 93 S. Ct. at 1841; Heck, 114 S.

Ct. at 2372. "Simply put, if the relief sought by the inmate would either invalidate his

conviction or sentence or change the nature or duration of his sentence, the inmate's

claim must be raised in a § 2254 habeas petition, not a § 1983 civil rights action." 

Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). Accordingly, this case must be

dismissed as no relief can be provided to Plaintiff. 

Accordingly, it is 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 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 3, 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.

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