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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES L. TATE, JR.,

Plaintiff,

vs. Case No. 4:10cv208-WS/WCS

PAUL HAWKES, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, a pro se state prisoner, has filed a third amended complaint, doc. 19,

and a memorandum of law, doc. 20. Plaintiff has shortened this version of the

complaint to 36 pages, from the 55-page second amended complaint. However,

Plaintiff's allegations are not "short and plain" nor does Plaintiff show he is "entitled to

relief." FED. R. CIV. P. 8(a)(2), quoted in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S.

336, 125 S.Ct. 1627, 1634, 171 L.Ed.2d 577 (2005). 

Plaintiff indicates he seeks monetary damages in this civil rights action, but he

also includes statements indicating he seeks and is entitled to "immediate release" from

prison. See doc. 19, pp. 3, 15-16, and 19. Plaintiff has previously been advised that a

civil rights action may not be used to seek release from prison. There are "two broad
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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 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). 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. Plaintiff is seeking release

from prison and collaterally challenge his criminal conviction, which occurred in 1993. 

Doc. 19, p. 10. Plaintiff was sentenced to life on July 15, 1993, and claims the trial court

did not have jurisdiction over his crime to sentence him to life. Id. Plaintiff may not

collaterally attack his conviction through this civil rights action.

Furthermore, Plaintiff is suing several judges in this case. The absolute immunity

of a defendant is one of a number of grounds which justifies dismissal under § 1915(d). 

Clark v. Ga. State Pardons and Parole Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990) and

cases cited. If a judge is acting in his judicial capacity, he is entitled to absolute

immunity from liability for damages under Section 1983 unless he acts in the "clear

Case No. 4:10cv208-WS/WCS
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absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 355-357, 98 S.Ct. 1099,

1104-05, 55 L. Ed.2d 331 (1978). Despite Plaintiff's conclusory argument that the

judges did not have jurisdiction over his case, Plaintiff has provided no facts to support

that claim. It appears from this record that Plaintiff was charged in state court,

convicted in state court, and the judges were acting in their judicial capacity in presiding

over Plaintiff's criminal trial and subsequent appeals. Plaintiff's claims cannot proceed

against any judge named as a Defendant in this case. See Simmons v. Conger, 86

F.3d 1080, 1084 (11th Cir. 1996), citing Stump, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed.

2d 331 (1978). 

While Plaintiff contends that Defendants have unlawfully denied Plaintiff his First

Amendment right of access to the Courts, doc. 19, p. 21, it appears rather that Plaintiff

had access to the courts, but his cases have not been successful. That is not a First

Amendment violation. Access does not include a guarantee of success. 

RECOMMENDATION

Accordingly, it is RECOMMENDED that Plaintiff's third amended civil rights

complaint, doc. 19, be DISMISSED for failure to state a claim upon which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and because Plaintiff seeks monetary

relief against numerous Defendants who are immune from such relief pursuant to 28

U.S.C. § 1915(e)(2)(B)(iii), that the order adopting this report and recommendation 

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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), and that all pending motions be DENIED.

IN CHAMBERS at Tallahassee, Florida, on August 23, 2010.

 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. 4:10cv208-WS/WCS