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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

THEODORE CHAIRES,

Plaintiff,

vs. Case No. 4:11cv140-RH/WCS

STATE OF FLORIDA,

and OFFICER A. FURNEY,

Defendants.

 /

SECOND REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, has submitted a

second amended civil rights complaint, doc. 11, an amended motion for leave to

proceed in forma pauperis, doc. 12, and an affidavit, doc. 13. Because Plaintiff was

already granted in forma pauperis status in this case, the amended motion may be

denied as moot. 

The second amended complaint does not cure the defects noted in the last

complaint. On June 13, 2011, I entered a report and recommendation, doc. 10, to

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dismiss Plaintiff's last amended complaint, doc. 9, because his claim1 is barred by

Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841, 36 L. Ed. 2d 439 (1973),

and Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). 

Plaintiff may not seek monetary damages related to a conviction or sentence until he

can show that the conviction or sentence has been invalidated. 

The second amended complaint Plaintiff submitted on June 29, 2011, doc. 11,

supersedes the last amended complaint and is similarly barred. Plaintiff entered into a

plea agreement which he now contends he did not understand. Doc. 11. This case

cannot challenge Plaintiff's convicted based on the plea agreement. Moreover, Plaintiff

states that he believed he would be released from jail with the plea agreement, but it

appears that plea was for a new charge and Plaintiff continued to be held in jail on a

violation of probation for a previous conviction. 

As Plaintiff was informed in the prior report and recommendation, doc. 10,

Plaintiff's convictions have not been reversed or overturned on appeal. Plaintiff may not

seek monetary damages which would collaterally undermine a criminal conviction or

sentence. Preiser v. Rodriguez, supra. "A claim for damages bearing that relationship

to a conviction or sentence that has not been so invalidated is not cognizable under §

1983." Heck, 512 U.S. at 487, 114 S.Ct. at 2372. Therefore, this case must be

dismissed and Plaintiff's second amended complaint is barred by Heck.

1

 In the amended complaint, Plaintiff states he was "unlawfully sentenced on

February 10, 2005," because the evidence was never tested to determine if the powdery

substance found in a plastic bag on the Defendant was crack cocaine. Doc. 9. Plaintiff

asserts a violation of his Sixth Amendment rights "[b]y not processing the paper work of

evidence" and contends it was a "bold face lie" to accuse him of "having crack cocaine." 

Id., at 7. Plaintiff sought "punitive damages to the maximum of what the law allows" for

this alleged violation.

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

amended complaint, doc. 11, be DISMISSED for failure to state a claim upon which

relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) because this case is barred by

Heck, that all pending motions be DENIED, that the last report and recommendation,

doc. 10, be found to be MOOT, 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 July 6, 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. 4:11cv140-RH/WCS

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