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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.

 /

REPORT AND RECOMMENDATION

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

amended civil rights complaint under 42 U.S.C. § 1983. Doc. 9. This version of the

complaint has been reviewed pursuant to 28 U.S.C. § 1915A. 

Plaintiff failed to sign the amended complaint. All pleadings must contain an

original signature. It is unnecessary to give Plaintiff an opportunity to submit a signed

complaint, however, because the allegations fail to state a claim upon which relief amy

be granted.

Plaintiff, who is currently in the Leon County Jail, has now listed the Defendants

as the State of Florida and Officer A. Furney, doc. 9, and has dismissed claims against

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Larry Campbell, Sheriff of Leon County. Cf. Doc. 1. Plaintiff alleges that he was

arrested on March 16, 2001. Doc. 9. While Plaintiff does not provide any other dates in

the amended complaint, he alleged in his original complaint, doc. 1, that he was

arrested and wrongfully sentenced several times, having violated probation, and

sentenced to prison for twenty-four months. Id., at 8. In the amended complaint,

Plaintiff states he was "unlawfully sentenced on February 10, 2005," and Plaintiff

contends it was unlawful because the evidence was never tested to determine if the

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

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

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

cocaine." Id., at 7. Plaintiff seeks "punitive damages to the maximum of what the law

allows" for this alleged violation. 

Statute of limitations problems aside, Plaintiff does not allege that his conviction

has been reversed or overturned on appeal. It is clear that one may not seek monetary

damages which would collaterally undermine a criminal conviction or sentence. Preiser

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

(prohibiting injunctive relief which would result in speedier or immediate release from a

term of imprisonment); Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 2372, 129 L.

Ed. 2d 383 (1994) (barring a claim for monetary damages related to a conviction or

sentence until the plaintiff can show that the conviction or sentence has been

invalidated). In Heck, the Court held "that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must

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prove that the conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance of a writ of habeas

corpus, 28 U.S.C. § 2254." Harden v. Pataki, 320 F.3d 1289, 1294 (11th Cir. 2003),

quoting Heck, 512 U.S. at 486-87, 114 S.Ct. at 2372. "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 pursuant to Heck.

Furthermore, the State of Florida is not an appropriate Defendant in a civil rights

case. The Supreme Court has held that States and state officials acting in their

official capacities are not "persons" for purposes of Section 1983. Will v. Michigan

Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989);

McKinley v. Kaplan, 177 F.3d 1253, 1255 (11th Cir. 1999). Additionally, a suit under

§ 1983 against the state is absolutely barred by the Eleventh Amendment, absent a

waiver of the immunity. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed.

2d 90 (1974); Gamble v. Florida Department of Health and Rehabilitative Services,

779 F.2d 1509 (11th Cir. 1986). The State of Florida has not waived its immunity

and this case cannot proceed against the State, as Plaintiff was previously advised. 

See doc. 5. 

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

amended complaint, doc. 9, 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 and may not challenge a valid conviction, and that the order

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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 June 13, 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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