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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL GOLDEN, JR.,

Plaintiff,

vs. Case No. 4:11cv54-SPM/WCS

GOVERNOR RICK SCOTT, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

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

rights complaint under 42 U.S.C. § 1983. Doc. 1. As Plaintiff has now paid the

assessed initial partial filing fee, the complaint has been reviewed pursuant to 28 U.S.C.

§ 1915A. 

Plaintiff's complaint is against the Governor of the State of Florida, the State

Attorney for the Second Judicial Circuit, an Assistant State Attorney, and a third

attorney, who was Plaintiff's criminal defense attorney. Doc. 1. Plaintiff challenges

several events leading up to his conviction after trial (which appears to have occurred in

June, 2010). All of Plaintiff's claims in this case involve his conviction. For example,
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Plaintiff contends that after he entered into a plea agreement, the State did not uphold

their end of the bargain and so his attorney filed a motion outside of the time to

withdraw the plea. Plaintiff contends the motion should not have been granted. Doc. 1,

p. 5. Then on the eve of trial the State filed an amended information charging him with

aggravated assault without intent to kill, and with aggravated battery, great bodily harm. 

Id. Plaintiff contends he was prejudiced unfairly and had insufficient time to prepare a

defense before going to trial. Id. During the trial, Plaintiff contends the State requested

that the charge of "felony battery, great bodily harm" be included in the jury instructions

as a lessor included offense Id. Plaintiff argues that is not a lesser included offense. 

Furthermore, Plaintiff claims there is no lawful charge of "felony battery great bodily

harm." Id., at 5-6. Plaintiff also argues his attorney failed to object, and that witnesses

were permitted to commit perjury in testifying at trial. Id., at 6. Moreover, Plaintiff

challenges the jury selection process. Id. Plaintiff was found guilty of both charges,

felony battery and aggravated assault, and contends his due process rights were

violation and he was subjected to malicious prosecution. Id., at 6-7. As relief, Plaintiff

seeks to have his conviction reversed and receive monetary compensatory. Id., at 7.

The law is clear that a prisoner may not seek to reduce his period of

confinement or challenge is conviction in a civil rights action. Preiser v. Rodriguez,

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

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

attack on the process of criminal proceedings and a conviction is a habeas corpus

claim which must be brought before the court through the filing of a petition under 28

U.S.C. § 2254.

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Additionally, 28 U.S.C. § 2254(b) requires that before a federal court may

consider a petition for writ of habeas corpus, a state prisoner must first present each

issue upon which the petitioner seeks review in federal court to the state courts for

consideration. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982);

Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). Plaintiff may

pursue relief through the filing of a Rule 3.850 motion and habeas corpus petition in

Florida state courts to seek relief for his claims. Plaintiff may then file an appeal at the

state level from a decision of the lower courts in this matter if adverse to Plaintiff. See

FLA. CONST., art. V, § 4; FLA. R. APP. P. 9.110. 

However, Plaintiff's claims are a direct attack on his conviction and may not

proceed in this Court as a civil rights action. Plaintiff's claims cannot be addressed,

even though Plaintiff seeks relief in the form of damages in addition to a reduction in the

length of his incarceration, because a claim for damages that is related to a conviction

that has not yet been reversed or invalidated is not cognizable under 42 U.S.C. § 1983. 

Heck, 512 U.S. 477, 114 S. Ct. 2364, 2372. In order to recover damages for allegedly

unconstitutional conviction or imprisonment, a plaintiff must prove that the conviction or

sentence has been reversed on appeal, expunged by an executive order, declared

invalid by a state tribunal, or called into question by a federal court's issuance of a writ

of habeas corpus. Id. Until a plaintiff's conviction or sentence has been overturned, a

claim under § 1983 has not yet arisen. Id. at 2373. 

If Plaintiff wishes to challenge his conviction and confinement through a writ of

habeas corpus, he may do so by filing the appropriate petition under 28 U.S.C. § 2254

after exhausting state remedies. However, Plaintiff's complaint under § 1983 which is

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presently before the court should be dismissed as frivolous because Plaintiff has failed

to state a claim upon which relief may be granted. 

It is therefore respectfully RECOMMENDED that Plaintiff’s civil rights

complaint, doc. 1, be DISMISSED for failing to state a cognizable claim. It is further

recommended 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 March 4, 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. 4:11cv54-SPM/WCS