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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHRISTIAN RALPH DAVIS,

Plaintiff,

vs. Case No. 3:10cv498/MCR/CJK

FRANK BELL, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Escambia County Jail proceeding pro se and in

forma pauperis, has filed a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). 

Upon review of the complaint, the court concludes plaintiff has not presented and

cannot present an actionable claim under § 1983. Therefore, dismissal of this case

is warranted. 

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff’s complaint names three defendants: Frank Bell, Circuit Judge of the

Escambia County Circuit Court;Jerrica Harness, Assistant State Attorney; and Sarah

Dyehouse, Assistant Public Defender. Plaintiff’s claims arise from his criminal

prosecution for petit theft in the Escambia County Circuit Court. Plaintiff’s case was

in the jury selection phase at the time he filed this action on November 30, 2010. 

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(Doc. 1, pp. 7-8). Judge Bell was the presiding judge at all times relevant to the

complaint; Ms. Harness was the prosecutor; and Ms. Dyehouse was plaintiff’s courtappointed attorney. Plaintiff claims Judge Bell and Prosecutor Harness violated his

rights to due process and a speedy trial when Bell failed to dismiss the charge based

on an alleged speedy trial violation, and when Harness refused to accept and give

effect to plaintiff’s pro se motion and/or notice concerning the alleged violation.

Plaintiff claims Attorney Dyehouse rendered ineffective assistance of counsel in

violation of the Sixth Amendment when she failed to move to dismiss the charge

based on the alleged speedy trial violation. As relief, plaintiff seeks monetary

damages and injunctive relief, including dismissal of “all current and previous

charges.” (Doc. 1, p. 9).

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied that the action 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. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). Dismissalsfor failure to state a claimare governed

by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v.

Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). In determining whether the complaint th

states a claim upon which relief may be granted, the court accepts all factual

allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

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29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as th

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007)

(retiring the negatively-glossed “no set offacts” language previously used to describe

the motion to dismiss standard and determining that because plaintiffs had “not

nudged their claims across the line from conceivable to plausible, their complaint

must be dismissed” for failure to state a claim). A complaint is also subject to

dismissal under Rule 12(b)(6) when its allegations – on their face – show that an

affirmative defense barsrecovery on the claim. Marsh v. Butler Cnty., Ala., 268 F.3d

1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct.

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910, 920-21, 166 L. Ed. 2d 798 (2007) (same; explaining, for example, that if a

complaint’s allegations show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim).

Taking the allegations of the complaint astrue and construing them in the light

most favorable to plaintiff, they fail to state a plausible § 1983 claimagainst Assistant

Public Defender Dyehouse. In any section 1983 action, the initial inquiry must focus

on whether two essential elements are present:

1. whether the conduct complained of was committed by a person acting

under color of state law; and

2. whether this conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912, 68 L. Ed. 2d 420, 428

(1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct.

662, 88 L. Ed. 2d 662 (1986); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11

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Cir. 2001). With regard to the first requirement, it is well-settled that “the party

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charged with the deprivation must be a person who may fairly be said to be a state

actor.” Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11 Cir. 2000). th

The United States Supreme Court has held that “a public defender does not act

under color of state law when performing a lawyer’s traditional functions as counsel

to a defendant in a criminal proceeding.” Polk Cnty. v. Dodson, 454 U.S. 312, 325,

102 S. Ct. 445, 453, 70 L. Ed. 2d 509 (1981). Plaintiff's claim against Attorney

Dyehouse is based on the allegation that during Dyehouse’s representation of plaintiff

in the criminal proceeding, Dyehouse failed to move to dismiss the charge based on

an alleged speedy trial violation. Dyehouse’s actions fall squarely under Dodson.

Because Ms. Dyehouse was not acting under color of state law when she engaged in

the alleged unconstitutional conduct, plaintiff’s claims against her cannot proceed

under § 1983 and must be dismissed. Dodson, 454 U.S. at 325, 102 S.Ct. at 453. 

It is also apparent fromthe face ofthe complaint thatJudge Bell and Prosecutor

Harness are absolutely immune from plaintiff’s damages claims. A judge acting in

his judicial capacity is entitled to absolute immunity from liability for damages under

§ 1983 unless he acts in the “clear absence of all jurisdiction.” Stump v. Sparkman,

435 U.S. 349, 355-57, 98 S. Ct. 1099, 1104-05, 55 L. Ed. 2d 331 (1978); see also

Scott v. Hayes, 719 F.2d 1562, 1567 (11 Cir.1983) (holding that a judge performing

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judicial acts in a matter over which he had jurisdiction is entitled to immunity for his

actions under § 1983). The Stump test is a two-part inquiry. The first question is

whether the judge dealt with the plaintiff in a judicial capacity. “Whether a judge’s

actions were made while acting in his judicial capacity depends on whether: (1) the

act complained of constituted a normal judicial function; (2) the events occurred in

the judge’s chambers or in open court; (3) the controversy involved a case pending

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before the judge; and (4) the confrontation arose immediately out of a visit to the

judge in his judicial capacity.” Sibley v. Lando, 437 F.3d 1067, 1070 (11 Cir. th

2005) (citing Scott v. Hayes, 719 at 1565). The second part of the Stump test is

whether the judge acted in the “clear absence of all jurisdiction.” Stump, 435 U.S. at

362, 98 S. Ct. at 1107. The absence of jurisdiction indicates that there is no subject

matter jurisdiction, or that the acts of the judge are purely private and non-judicial. 

See Simmons v. Conger, 86 F.3d 1080, 1084 (11 Cir. 1996). It is clear from the

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allegations of the complaint that Judge Bell was dealing with plaintiff in his judicial

capacity when he declined to entertain plaintiff’s argument of a speedy trial violation. 

Judge Bell was the judge of a criminal court presiding over plaintiff’s criminal case

at the time of the conduct. Thus, he clearly had jurisdiction over plaintiff’s criminal

case, and there is no allegation to the contrary. See Stump, 435 U.S. at 356-57 and

n. 7, 98 S. Ct. at 1105 and n. 7. Therefore, plaintiff’s damages claims against Judge

Bell must be dismissed. 

Prosecutor Harness is also entitled to absolute immunity, as her allegedly

unconstitutional actions were performed within the scope of her role as a government

advocate. Rivera v. Leal, 359 F.3d 1350, 1353 (11 Cir. 2004) (citing Buckley v. th

Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993)). The

initiation and pursuit of a criminal prosecution, appearances before the court and

other in-court activity are classic examples of actions taken by a prosecutor in

performing her role as a government advocate. See Rivera, 359 F.3d at 1353;see also

Jones v. Cannon, 174 F.3d 1271, 1281 (11 Cir. 1999) (finding that absolute th

immunity extends to a prosecutor’s acts performed “in preparing for the initiation of

judicial proceedingsfor trial, and which occur in the course of his role as an advocate

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for the State”). For qualifying acts, a prosecutor receives absolute immunity

regardless of the prosecutor’s motive or intent. See Grant v. Hollenbach, 870 F.2d

1135, 1138 (6 Cir. 1989) (“Absolute prosecutorial immunity is not defeated by a

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showing that the prosecutor acted wrongfully or even maliciously. . . .”) (quotations

omitted). Because Harness’ actions(proceeding with plaintiff’s criminal prosecution

despite his complaint of a speedy trial violation) occurred in the course of her role as

an advocate for the State, she is entitled to prosecutorial immunity. Plaintiff’s

damages claims against her must therefore be dismissed.

Plaintiff’s claims for injunctive relief are not cognizable in this § 1983

proceeding, as they challenge the fact of plaintiff’s incarceration and should have

been brought in a habeas corpus petition. See Dyer v. Lee, 488 F.3d 876, 880 (11

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Cir. 2007) (“[H]abeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or speedier

release, even though such a claim may come within the literal terms of § 1983.”)

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

439 (1973)). Therefore, plaintiff’s injunctive relief claims must be dismissed.

“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008,

1014 (11 Cir. 2005). However, “[a] district court need not . . . allow an amendment

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(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure

to cure deficiencies by amendments previously allowed; (2) where allowing

amendment would cause undue prejudice to the opposing party; or (3) where

amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11 Cir. 2001). th

In this case, amendment would be futile.

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Accordingly, it is respectfully RECOMMENDED:

That this case be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) and (iii), and the clerk be directed to close the file.

At Pensacola, Florida this 24th day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 3:10cv498/MCR/CJK

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