1

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

 

JAMES DOUGLAS LEWIS, JR., :

Plaintiff, :

vs. : CIVIL ACTION 15-0352-KD-M

HALLIE S. DIXON, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a Baldwin County Corrections Center inmate

proceeding pro se and in forma pauperis, filed a Complaint under 

42 U.S.C. § 1983. This action has been referred to the 

undersigned for appropriate action pursuant to 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2(c)(4). After careful review, 

it is recommended (1) that this action be dismissed, prior to 

service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 

(ii) because Plaintiff’s claims are either frivolous or fail to 

state a claim upon which relief can be granted, and (2) that the 

claims upon which Plaintiff failed to state a claim upon which 

relief can be granted be dismissed without prejudice so 

Plaintiff may re-file them in a new action or, if he so elects, 

may file an amended complaint within the period for filing 

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objections to the Report and Recommendation, for the purpose of 

stating a claim. See Lee v. Alachua Cnty., Fla., 461 F. App’x 

859 (11th Cir. 2012) (unpublished).1

I. Complaint. (Doc. 1). 

In this § 1983 action, Plaintiff names as Defendants Hallie 

S. Dixon, District Attorney for Baldwin County, Alabama; Joseph 

E. Davis, Deputy Sheriff for Baldwin County; and Jacob Hill, 

Deputy Sheriff for Baldwin County. (Doc. 1 at 7). Plaintiff 

claims that between July 27, 2012 and July 10, 2015 (when he 

filed this action), “the defendants have worked in concert to 

use false information to assemble a criminal case to be 

presented to a grand jury for an indictment and to use said 

indictment to obtain a conviction in the Circuit Court of 

Baldwin County.” (Id. at 4). Plaintiff indicates that at the 

time of filing, he was awaiting trial. (Id. at 8).

The Complaint contains the following pertinent allegations

against Defendants. On July 27, 2012, Defendant Hill seized a 

pistol from Bonnie Moss and placed it in an evidence locker, 

without taking a statement about the pistol’s ownership, but 

merely acted upon assumptions and hearsay. (Id.). In the 

offense report Defendant Hill stated that “[w]hen [Plaintiff] 

 1 “Unpublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11TH CIR. R. 36-2 (2005).

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left [Bonnie’s] residence he . . . left a pistol,” which 

Plaintiff claims is not based on “testimony or fact.” (Id. at 

7-8). In the offense report Defendant Hill stated that he left 

the ammunition with Bonnie and gave her a property receipt for 

the pistol, which Plaintiff alleges is tampering with evidence.

(Id. at 12). Plaintiff maintains the ammunition could have been

tested for fingerprints to “possibly ... eliminate” him as the 

pistol’s owner, and because that did not occur, his 

constitutional rights were violated. (Id.). Furthermore, 

Defendant Hill allowed the reproduction and alteration of his 

original report. (Id.).

On July 31, 2012, in the supplemental narrative, Defendant 

Davis used false information in his complaint, stating Plaintiff 

had been arrested and charged in Walton County, Florida, for 

attempted murder. (Id. at 5). This information was presented 

to the grand jury to help obtain an indictment, which Plaintiff 

alleges was a violation of his constitutional rights. (Id.). 

During an unidentified, fifteen-month period, Defendants 

allegedly did not use “due diligence” to verify statements from 

witnesses or to investigate his claims. (Id. at 4-5). Instead, 

Defendants “worked in concert with witnesses to fabricate 

statements almost nine months after the fact” so Defendants

Dixon and Davis could present the statements to the grand jury 

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to obtain an indictment against him. (Id. at 6).

In addition, after the original report was made on July 27, 

2012, Defendant Davis altered vital information “to validate his 

report” and to make the information coincide to another case 

against Plaintiff. (Id. at 11). And in the supplemental 

narrative of July 31, 2012, he stated that his actions were 

based on the emailed statement of the witness Alexson; however, 

the email was received August 1, 2012, which calls into question 

Defendant Davis’s truthfulness before the grand jury. (Id.). 

Lastly, Plaintiff alleges that “Defendant Davis filed a false 

affidavit of information in order to obtain a warrant for arrest 

and ultim[ate]ly an indictment against Plaintiff.” (Id. at 7).

On September 20, 2013, Defendant Davis testified before the 

grand jury using the false statements contained in his 

narratives of July 31, 2012 and April 16, 2013. (Id. at 7, 11). 

Furthermore, the witnesses’ statements of April 1, 2013, which

were attested to by Defendant Davis for truthfulness and where 

they were taken, indicate that Defendant Davis was in two 

different places at the same time. (Id. at 11). 

With respect to Defendant Dixon, she is alleged to have 

“conspired” with Defendant Davis to submit false information to 

the grand jury to obtain an indictment against Plaintiff. (Id.

at 7). On September 20, 2013, Defendant Dixon appeared before 

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the grand jury with information provided by Defendant Davis, 

which she allegedly knew to be false because it was based on the 

police complaint of July 27, 2012. (Id.). Defendant Dixon 

allegedly did not investigate Plaintiff’s claims and “worked in 

concert with witnesses to fabricate statements almost 9 months 

after the fact,” which were presented to the grand jury to 

obtain the indictment against Plaintiff. (Id. at 6). Defendant 

Dixon allowed Defendant Davis to appear before the grand jury to 

“paint” Plaintiff as a dangerous criminal – an “attempted 

murderer” who lies and a stalker – in order to persuade the 

grand jury to indict him, which is alleged to constitute 

subornation of perjury. (Id.).

Defendant Dixon, or an assistant appearing on her behalf,

lied under oath to the grand jury that indicted Plaintiff when 

she used the false supplemental narratives of July 31, 2012 and 

April 16, 2013 and Defendant Davis’s false facts. (Id. at 9). 

That is, in the July 31, 2012, narrative statement, Defendant 

Davis stated that Plaintiff was arrested and charged by the 

Walton County Sheriff’s Department for attempted murder, and the 

statement also contained language “if the attempted murder 

charges and other felony charges get dropped,” which Plaintiff 

did not explain. (Id.). In the April 16, 2013, narrative 

statement, Defendant Davis states that he “got [Plaintiff] to 

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admit he was living . . . alone in the trailer until he was 

apprehended and the pistol was found.” (Id. at 15). 

Defendant Dixon is further alleged not to have turned over 

evidence that was part of the offense reports, that is, the 

power of attorney taken into evidence by Defendant Davis, the 

signature sheet and statement added as an attachment by Deputy 

Welsh, the intrastate extradition request and application for a 

governor’s warrant from Pennsylvania, the Governor’s Warrant 

signed by the Governor of Pennsylvania before November 12, 2013, 

the signature sheet and statement from Deputy Welsh and Deputy 

Pierce, and the police reports from Walton County, Florida, from 

July 26, 2013 to validate Defendant Davis’s statement and 

testimony before the grand jury. (Id. at 10).

For relief, Plaintiff’s requests (1) the imposition of 

“financial penalties” against Defendants due to his detention 

for over 700 days on account of “false testimony,” and (2) an 

investigation request be sent to the Department of Justice 

(“DOJ”) to review the cases against Plaintiff for criminal 

misconduct by Defendants, the Baldwin County Sheriff’s Office,

and the District Attorney’s Office. (Id. at 13-14).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

This action is now before the undersigned for screening of 

the Complaint (doc. 1) pursuant to 28 U.S.C. § 1915(e)(2)(B), 

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because Plaintiff is proceeding in forma pauperis. See S.D. ALA.

GENLR 72(a)(1)&(2)(R) (referring § 1983 actions filed by 

prisoners to the magistrate judges). 

A broad grant of discretion is given to federal district 

courts in the screening and management of in forma pauperis

actions. Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 

636, 639 (11th Cir. 1990). When considering a pro se litigant’s 

allegations, the court holds them to a more lenient standard 

than those of an attorney, Tannenbaum v. United States, 148 F.3d 

1262, 1263 (11th Cir. 1998), but it does not have “license . . . 

to rewrite an otherwise deficient pleading in order to sustain 

an action.” GJR Investments v. County of Escambia, Fla., 132 

F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by

Randall v. Scott, 610 F.3d 791, 710 (11th Cir. 2010) (relying on 

Ashcroft v. Iqbal, 566 U.S. 662 (2009)). Furthermore, a pro se

litigant “is subject to the relevant law and rules of court 

including the Federal Rules of Civil Procedure.” Moon v. 

Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 

863 (1989).

At any point in the proceedings, when the district court 

finds that the action is frivolous or malicious, or fails to 

state a claim upon which relief can be granted, the action’s 

dismissal is mandated by 28 U.S.C. § 1915(e)(2)(B). 28 U.S.C. § 

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1915(e)(2)(B); Bilal v. Driver, 251 F.3d 1346, 1348 (11th Cir.), 

cert. denied, 534 U.S. 1044 (2001). An action is frivolous when 

the district court concludes that it has “little or no chance of 

success,” because based on the face of the complaint, the legal 

theories are “indisputably meritless,” or the factual 

allegations are “clearly baseless,” (that is, where the 

complaint “lacks an arguable basis either in law or in fact”). 

Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting 

Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832, 

104 L.Ed.2d 338 (1989)); Denton v. Hernandez, 504 U.S. 25, 32-

34, 112 S.Ct. 1728, 1733–34, 118 L.Ed.2d 340 (1992)); Neitzke,

490 U.S. at 326, 109 S.Ct. at 1831-32;2 see also Clark v. State 

of Ga. Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990) 

(“A lawsuit is frivolous if the ‘plaintiff's realistic chances 

of ultimate success are slight.’”) (quotation omitted)). 

A claim based on an indisputably meritless legal theory 

encompasses claims for “an infringement of a legal interest 

which clearly does not exist,” Neitzke, 490 U.S. at 327, 109 

S.Ct. at 1833, or where “the defendants are immune from suit.” 

 2 Neitzke’s interpretation of 28 U.S.C. § 1915(d) is applied to § 

1915(d)’s superseding statute, 28 U.S.C. § 1915(e)(2)(B). Bilal, 251 F.3d at 

1348-49.

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Id.;3 see Clark, 915 F.2d at 640 (when an affirmative defense 

would defeat the action, the action’s dismissal as frivolous is 

also warranted).4 While a factually baseless claim is one 

“describing fantastic or delusional scenarios, claims with which 

federal district judges are all too familiar.” Denton, 504 U.S. 

at 32-33, 112 S.Ct. at 1733; cf. Battle v. Central State Hosp.,

898 F.2d at 129 n.2 (baseless allegations also include 

allegations contradicted by other allegations in the complaint); 

Weaver v. Geiger, 294 F. App’x 529, 534 (11th Cir. 2008)

(unpublished) (conspiracy allegations that are baseless due to 

the absence of supporting evidence can be found to be fantastic 

and delusional).5

Moreover, § 1915(e)(2)(B)(ii) authorizes the dismissal of a 

complaint for failure to state a claim upon which relief may be 

granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 

1997). To avoid dismissal for failure to state a claim, the 

 3 Dismissal of damages claims against a defendant who is immune from 

damages claims is now a separate, statutory ground for a frivolous dismissal. 

28 U.S.C. § 1915(e)(2)(B)(iii).

4 The Clark court observed that an action could state a claim but still 

be frivolous due to the application of an affirmative defense, such as 

absolute immunity from damages; res judicata or collateral estoppel; 

allegations previously litigated in another suit; or the statute of 

limitations. Clark, 915 F.2d at 640 n.2. It also mentioned that an action 

could be frivolous where money damages were sought from a defendant whom the 

court knew was judgment proof, or where others recently unsuccessfully 

litigated an identical claim in another action. Id. at 640. 

5 “Unpublished opinions are not considered binding precedent, but they 

may be cited as persuasive authority.” 11TH CIR. R. 36-2 (2005). 

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allegations must show plausibility. Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 

929 (2007). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the 

misconduct alleged. . . . [This standard] asks for more than a 

sheer possibility that a defendant has acted unlawfully.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 

L.Ed.2d 868 (2009). That is, “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” 

and must be a “‘plain statement’ possess[ing] enough heft to 

‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 

U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in 

original). “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not 

suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. In 

determining whether a claim is stated, the factual allegations 

are accepted as true, except for conclusory assertions or a 

recitation of a cause of action’s elements. Id.; Mitchell, 112 

F.3d at 1490.

III. Discussion.

A. Deficient Pleading. 

Plaintiff’s description of his claims consists mostly of 

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vague and conclusory allegations, with a few specific facts 

interspersed. Plaintiff frequently labels something as false 

with little or no supporting information to show the falsity of 

it. Whether something is false is a conclusion that a court

makes after considering the descriptive, supporting information. 

Then, if something is indeed false, in order for it to be 

relevant to a § 1983 action, the falsity must be intertwined 

with a plausible violation of Plaintiff’s constitutional rights. 

See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 

68 L.Ed.2d 420 (1981)(a § 1983 claim requires a plaintiff to 

establish, among other things, the complained of “conduct 

deprived [him] of rights, privileges, or immunities secured by 

the Constitution or laws of the United States.”), overruled on 

other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 

(1986).

Plaintiff refers to a “false affidavit” without identifying 

the false information in it. (Doc. 1 at 7). This instance is 

the only time an affidavit is mentioned. 

Plaintiff alleges this “false affidavit” was used to obtain 

an arrest warrant and ultimately his indictment. (Id.). This 

is the lone reference to an arrest warrant originating from the 

events of which Plaintiff complains. No information is provided 

describing the events that caused the issuance of the arrest 

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warrant, what was contained in the arrest warrant, or what 

occurred during the arrest, nor is the offense for which 

Plaintiff was arrested identified. It is only through the 

complaint form’s inquiries that Plaintiff advises that he is 

charged with possession of an altered firearm and with stalking. 

(Id. at 8). And he does not indicate if his allegations relate 

to both charges. 

Rather, Plaintiff’s allegations in this action are 

concerned with the type and quality of evidence presented to the 

grand jury and the proceedings before the grand jury that 

indicted him. And, by mentioning in his request for relief that 

he wants to be compensated for 700 days, he indicates, in an 

indirect manner, that he is seeking compensation for being 

imprisoned. However, the lack of specificity in his allegations 

and the lack of allegations to convey a plausible claim in his 

Complaint prevents Plaintiff from stating a plausible claim for 

relief as explained in the following discussion of the 

Complaint’s other deficiencies. 

B. Conspiracy Allegations.

Plaintiff claims that “Defendants worked in concert” (Doc. 

1 at 4), Defendant Dixon “conspired with [Defendant Davis] to 

submit knowingly false information to [the] Grand Jury” (id. at 

7), and Defendant Davis “worked in concert with the witnesses to 

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fabricate statements” (id. at 6) and “knowingly conspired with 

witnesses to obtain statements which would be favorable to his 

case.” (Id. at 7). These allegations are the extent of the 

conspiracy allegations. No factual information is provided 

showing an agreement was reached or a meeting occurred, nor was 

information presented showing that a Defendant’s actions went

beyond the role of preparing a criminal case. Thus, a 

Defendant’s involvement in the alleged conspiracy is consistent 

with actions taken to fulfill the duties of his or her position

in the prosecution of a criminal case.

In the absence of factual information describing the 

conspiracy and the agreement, the Court finds the conspiracy 

claims are based on bald, conclusory assertions of a conspiracy. 

And “[w]holly conclusory allegations of conspiracy must be 

disregarded.” Muhammad v. Bethel-Muhammad, No. 11-0690-WS-B, 

2012 WL 1854315, at *7 (S.D. Ala. 2012) (unpublished) (quotation 

and internal quotation marks omitted); see Fullman v. Graddick,

739 F.2d 553, 556–57 (11th Cir. 1984) (a § 1983 conspiracy 

allegation that is vague and conclusory fails to state a claim 

upon which relief can be granted and is subject to dismissal). 

“Twombly and Iqbal require the proper pleading of a conspiracy.” 

Muhammad, 2012 WL 1954315, at *4. A conspiracy claim needs 

sufficient “factual matter (taken as true) to suggest that an 

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agreement was made.” Twombly, 550 U.S. at 556, 127 S.Ct. at 

1965; see Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.) 

(it must be shown “that the parties ‘reached an understanding’ 

to deny the plaintiff his or her rights. . . . [and t]he 

conspiratorial allegations must impinge upon the federal 

right[,i.e.,] the plaintiff must prove an actionable wrong to 

support the conspiracy”), cert. denied, 500 U.S. 932 (1991). 

“[L]awful parallel conduct fails to bespeak unlawful agreement. 

. . . [W]hen allegations of parallel conduct are set out . . . , 

they must be placed in a context that raises a suggestion of a 

preceding agreement, not merely parallel conduct that could just 

as well be independent action.” Twombly, 550 U.S. at 556-57, 

127 S.Ct. at 1965 (emphasis added).

In the present action, Plaintiff’s conspiracy claim is 

vague and conclusory, and the Complaint’s other allegations are 

consistent with or parallel to duties that each person would 

perform in his or her position. Accordingly, the Court finds 

that the conspiracy allegations are without legal merit and 

therefore are frivolous, as a conspiracy claims have little or 

no chance of success. Fortson v. Georgia, 601 F. App’x 772, 774

(11th Cir. 2015) (unpublished) (affirming the conspiracy 

complaint’s frivolous dismissal as it only contained only a 

sparse account of facts and therefore lacked arguable merit in 

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law and fact).

C. Inadequate Investigation Allegations.

Plaintiff maintains that over a fifteen-month period 

Defendants did not conduct an investigation into his claims and

did not obtain a statement about the pistol’s ownership, but 

instead relied on assumptions and hearsay. (Id. at 4-5).

Moreover, Defendants “worked in concert with the witnesses to 

fabricate statements almost 9 months after the fact[.]” (Id. at 

6). And Defendant Hill tampered with evidence when he removed 

the ammunition from the pistol and did not test the ammunition 

for his fingerprints. (Id. at 12). By themselves, these 

allegations for an inadequate investigation impinge upon no

constitutional right. Hall v. Pate, No.2:07-cv-0766-WKW-SRW, 

2007 WL 4106542, at *4 (M.D. Ala. 2007) (unpublished) (citing 

DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189 

(1989)); see Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 

1998) (“That the prosecution did not investigate properly or 

prosecute expeditiously the charges against him does not violate 

clearly established constitutional rights.”). Therefore, the 

claims for an inadequate investigation are due to be dismissed 

as frivolous.

C. Request for Relief.

Plaintiff requested the imposition of “financial penalties” 

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(Doc. 1 at 13), which the Court construes as a request for 

damages. Inasmuch as this request contains no specific details, 

the Court, giving this request a liberal construction, will 

treat it as one for nominal, compensatory, and punitive damages. 

The Court observes that no request for declaratory or 

injunctive relief was made. (Nonetheless, such relief would not 

be available to him in this action, as Younger v. Harris, 401 

U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), requires a federal 

district court to abstain from interfering with a pending state 

criminal proceeding “when the moving party has an adequate remedy 

at law and will not suffer irreparable injury if denied 

equitable relief.” Id. at 43-44, 91 S.Ct. at 750. Because 

Plaintiff can bring his claims in his criminal case and 

defending a criminal action is not an irreparable injury, this 

Court would abstain from any requests for injunctive or 

declaratory relief. Id. at 46, 49, 91 S.Ct. at 751, 753; Watson 

v. Florida Judicial Qualifications Comm’n, ___ F. App’x ___, 

____, 2015 WL 3971127 at *1 (11th Cir. July 1, 2015) 

(unpublished).

Plaintiff’s other request is for the Court to request the

DOJ to review the cases against him, which allegedly would show 

“what could be criminal misconduct” by Defendants. This request 

is inappropriate for two reasons. First, Plaintiff does not 

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give a purpose for the referral. The Court can only infer that 

Plaintiff is requesting the criminal prosecution of Defendants, 

because he refers to possible criminal misconduct. If Plaintiff 

seeks the prosecution of Defendants, such a request is frivolous 

because “a private citizen has no judicially cognizable interest 

in the prosecution or non-prosecution of another.” Otero v. 

United States Attorney General, 832 F.2d 141, 141 (11th Cir. 

1987) (affirming the dismissal of an action seeking the writ of 

mandamus to require the defendants to investigate and prosecute 

a former Florida State Attorney) (citing Linda R.S. v. Richard 

D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 

(1973)). Moreover, “[a] decision to prosecute is within the 

United States Attorney’s substantial discretion[.]” United 

States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied,

475 U.S. 1109 (1986); see United States v. Smith, 231 F.3d 800, 

807 (11th Cir.) (“ The decision as to which crimes and criminals

to prosecute is entrusted by the Constitution not to the 

judiciary, but to the executive who is charged with seeing that 

laws are enforced.”), cert. denied, 532 U.S. 1019 (2001). 

Second, the disposition of Plaintiff’s action, infra, does not 

warrant a referral to the DOJ. Thus, Plaintiff’s request for a 

referral to the DOJ is frivolous and is subject to dismissal. 

Consequently, only claims for damages remain in this action.

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D. Claims Against Defendant Dixon.

In a § 1983 action a prosecutor has absolute immunity for 

damages for all activities that are “‘intimately associated with 

the judicial phase of the criminal process.’” Van de Kamp v. 

Goldstein, 555 U.S. 335, 341, 129 S.Ct. 855, 859, 172 L.Ed.2d 

706 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 

S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)). In Imbler v. Pachtman, 

supra, the Supreme Court first ruled “a prosecutor enjoys 

absolute immunity from § 1983 suits for damages when he acts 

within the scope of his prosecutorial duties.” 424 U.S. at 420, 

96 S.Ct. at 990. This immunity protects a central actor in the 

judicial process against “harassment by unfounded litigation 

[that] would cause a deflection of the prosecutor’s energies 

from the public duties, and the possibility that he would shade 

his decisions instead of exercising the independence of judgment 

required by his public trust.” Id. at 422-23, 96 S.Ct. at 991; 

see Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 

89 L.Ed.2d 271 (1986). 

Immunity is granted to all conduct that is “intimately 

associated with the judicial phase of the criminal process,” 

which includes the “initiating a prosecution and in presenting 

the State’s case.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 

1934, 1939, 114 L.Ed.2d 547 (1991)(quoting Imbler, 424 U.S. at 

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430-31, 96 S.Ct. at 995). That is, a prosecutor is entitled to 

absolute prosecutorial immunity from damages in a § 1983 action 

for performing his function as an advocate for the government. 

Buckley v. Fitzsimmons, 509 U.S. 259, 272-73, 113 S.Ct. 2606, 

2615, 125 L.Ed.2d 209 (1993); Rehberg v. Paulk, ___ U.S. ___, 

___, 132 S.Ct. 1497, 1503, 182 L.Ed.2d 593 (2012). “The fact 

that one constitutional duty at issue was a positive duty (the 

duty to supply ‘information relevant to the defense’) rather 

than a negative duty (the duty to not ‘use . . .perjured 

testimony’) ma[kes] no difference” in the application of 

absolute prosecutorial immunity. Van de Kamp, 555 U.S. at 342, 

129 S.Ct. at 861.

Absolute prosecutorial immunity extends to the 

prosecutor’s decision of whom to prosecute, Imbler, 424 U.S. at 

431, 96 S.Ct. at 995; Omegbu v. Milwaukee County, 326 Fed.Appx. 

940, at **1 (7th Cir. 2009) (unpublished), and to a prosecutor’s 

conduct before the grand jury. Buckley, 509 U.S. at 273, 113 

S.Ct. at 2615; Burns, 500 U.S. at 490, 111 S.Ct. at 1941. This 

immunity protects “the public prosecutor, in deciding whether a 

particular prosecution shall be instituted or followed up, [as 

the prosecutor] performs much the same function as a grand 

jury.” Butz v. Economou, 438 U.S. 478, 510, 98 S.Ct. 2894, 

2912, 57 L.Ed.2d 895 (1978) (quoting Yaselli v. Goff, 12 F.2d 

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396, 404 (2d Cir.), aff’d, 275 U.S. 503 (1927)). Furthermore, 

prosecutorial “immunity extend[s] to the knowing use of false 

testimony before the grand jury and at trial.” Burns, 500 U.S. 

at 485, 111 S.Ct. at 1938 (citing Imbler, 424 U.S. at 421-424, 

426, and n. 23, 96 S.Ct., at 990-992, 993, and n. 23). 

In the present action Plaintiff alleges that Defendant 

Dixon, along with Defendant Davis, helped the witnesses prepare 

their statements, she allowed Defendant Davis to testify before 

the grand jury even though he had “falsified the report” of July 

27, 2012, (id. at 6, 7), she appeared before the grand jury (id. 

at 7), she did not turn over certain documents (id. at 10), and 

she lied before the grand jury using Defendants Davis’s false 

statements of July 31, 2012, and April 16, 2013. (Id. at 9).

These allegations against Defendant Dixon are based on her 

actions or inactions in her role as a prosecutor and they are 

“intimately involved with the judicial phase of the criminal 

process.” Defendant Dixon is, therefore, entitled to absolute 

immunity from damages and is due to be dismissed from this 

action because the claims against her are frivolous. See 

Rehberg v. Paulk, 611 F.3d 828, 842 (11th Cir.) (prosecutor was 

entitled to absolute immunity on the claim of fabricating grand 

jury testimony), aff’d 132 S.Ct. 1497 (2012). 

E. Claims Against Defendant Davis for Testimony Before the

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21

 Grand Jury.

Plaintiff claims that on September 20, 2013, Defendant 

Davis testified falsely before the grand jury when he related 

the false information as contained in his narratives of July 31, 

2012 and April 16, 2013 (Doc. 1 at 11), and “painted” Plaintiff 

as a dangerous criminal, an attempted murderer who lies and a 

stalker (id. at 6, 7), and that Defendant Davis’s complaint,

referring to the Walton County attempted murder charge, was 

provided to the grand jury. (Id. at 5).

In a § 1983 action, a witness who testifies before the 

grand jury or at trial is entitled to absolute immunity from 

damages. Rehberg, ___ U.S. at ___, 132 S.Ct. at 1505-07 (the 

district attorney’s chief investigator was entitled to absolute 

immunity from damages for his allegedly false testimony before 

the grand jury); Briscoe v. LaHue, 460 U.S. 325, 326, 103 S.Ct. 

1108, 1110-11, 75 L.Ed.2d 96 (1983) (the police officer was 

entitled to absolute immunity from damages for his perjured 

testimony at trial). Moreover, an allegation of a conspiracy 

will not prevent the application of absolute immunity because to 

hold otherwise would circumvent absolute immunity and its goals 

and the harms it seeks to prevent. Rehberg, ___ U.S. at ___, 

132 S.Ct. at 1506-07 (“in the vast majority of cases involving a 

claim against a grand jury witness, the witness and the 

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22

prosecutor conducting the investigation engage in preparatory 

activity, such as a preliminary discussion in which the witness 

relates the substance of his intended testimony. We decline to 

endorse a rule of absolute immunity that is so easily 

frustrated.” (footnote omitted)). Accordingly, Defendant Davis 

is entitled to absolute immunity from damages for his testimony 

before the grand jury. These claims against him are, therefore,

due to be dismissed as frivolous.

F. Remaining Claims.

Even though most of the claims in this action are subject 

to dismissal based upon one of the foregoing reasons, there 

remain a few claims that did not fall into the above categories. 

These claims are: Defendant Hill wrote an offense report 

containing accusations that are not based on testimony or fact

(Doc. 1 at 7-8); Defendant Hill “allowed the reproduction and 

altering of his original report” (id. at 12); Defendant Davis 

“falsified the original offense report of 7/27/2012 [and 

afterwards,] he added and/or changed vital information in his

report in order to validate his report and to make information 

in [the] reports he later filed concerning another case against 

the plaintiff which he also investigated coincide with each 

other” (id. at 11); and Defendant Davis filed a false affidavit 

to obtain an arrest warrant. (Id. at 7). 

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These claims are pled in an extremely vague and conclusory 

manner. See Fullman, 739 F.2d at 555-556 (“In civil rights and 

conspiracy actions, . . . more than mere conclusory notice 

pleading is required[, as] a complaint will be dismissed as

insufficient where the allegations it contains are vague and 

conclusory.”). That is, no concrete information was conveyed in 

close proximity to these allegations, nor was information 

provided to relate these allegations to other more specific 

allegations in the Complaint. No information is provided 

identifying the accusations in the offense report and how they 

lacked a basis in fact; how the original report was altered 

and/or falsified and thus violated a constitutional right; and 

how the affidavit was false. Even if this information was 

provided so the claims would not be vague or conclusory, no 

indication is given that this information would furnish a basis 

for a claim for a violation of a constitutional right, which is 

necessary to state a claim under § 1983. See Parratt, supra. 

At this time, no plausible § 1983 claim is alleged based on 

these allegations. See Iqbal, 556 U.S. at 678, 129 S.Ct. at 

1949 (“A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct 

alleged. . . . [This standard] asks for more than a sheer 

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24

possibility that a defendant has acted unlawfully.”). 

Therefore, these remaining claims are due to be dismissed 

without prejudice for failure to state a claim upon which relief 

can be granted. 

However, within the time period for filing objections to 

the Report and Recommendation, Plaintiff may file an amended 

complaint that states a claim with respect to these failure-tostate-a-claim allegations, which necessarily need to comply with 

the pleading directives of Twombly, supra, and Iqbal, supra. 

See Lee, 461 F. App’x at 860 (requiring a pro se litigant be 

given one chance to amend a complaint that fails to state a 

claim before dismissing the complaint, but recognizing that an 

amendment will not be allowed if it is futile, that is, subject 

to being dismissed or to summary judgment). 

If an amended complaint is not filed, these remaining 

claims will be subjected to being dismissed without prejudice 

for failure to state a claim upon which relief can be granted. 

However, if an amended complaint is filed, it will be subject to 

screening under § 1915(e)(2)(B). In the screening of the 

amended complaint, the Court may consider the following reasons 

for dismissing the amended complaint or this action.

First, at this time, due to the lack of factual information

in these remaining allegations, the Court is not able to 

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25

determine if the decision in Wallace v. Kato, 549 U.S. 384, 127 

S.Ct. 1091, 166 L.Ed.2d 973 (2007), applies. The Wallace Court 

held that a false arrest claim accrues at the time when the 

false imprisonment ends, which is when process is issued or an 

arraignment is held. Id. at 390, 127 S.Ct. at 1096 (the statute 

of limitations commenced when legal process was initiated 

against the plaintiff).

Claims that arise after the issuance of process or an 

arraignment, however, are considered damages to the distinct 

tort of malicious prosecution, which is a claim for the wrongful 

institution of legal process. Id. To recover damages on a 

malicious prosecution claim in a § 1983 action, the decision in 

Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed. 383 

(1944), requires the challenged conviction and/or sentence be 

invalidated. Id. at 487, 114 S.Ct. at 2372. Invalidation is a 

necessary element of the cause of action for malicious 

prosecution because until invalidation occurs, no cause of 

action for malicious prosecution exists. Id. at 489, 114 S.Ct. 

at 2373. The Heck decision holds:

[I]n 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 prove that the conviction or sentence 

has been reversed on direct appeal, expunged by 

executive order, declared invalid by a state tribunal 

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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. A claim for damages 

bearing that relationship to a conviction or sentence 

that has not been so invalidated is not cognizable 

under § 1983. Thus, when a state prisoner seeks 

damages in a § 1983 suit, the district court must 

consider whether a judgment in favor of the plaintiff 

would necessarily imply the invalidity of his 

conviction or sentence; if it would, the complaint 

must be dismissed unless the plaintiff can demonstrate 

that the conviction or sentence has already been 

invalidated. But if the district court determines that 

the plaintiff's action, even if successful, will not 

demonstrate the invalidity of any outstanding criminal 

judgment against the plaintiff, the action should be 

allowed to proceed, . . . in the absence of some other 

bar to the suit. (Footnotes omitted.)

Id. at 486, 114 S.Ct. at 2372-73. Thus, in this action a 

remaining claim may be barred by the two-year statute of 

limitations for § 1983 action or a remaining claim may be 

considered as damages in a malicious prosecution claim, but 

these determinations could not be made at this time due to the 

lack of information. See Lufkin v. McCallum, 956 F.2d 1104, 

1105, 1108 n.2 (11th Cir.) (the statute of limitations for a § 

1983 action filed in Alabama is two years), cert. denied, 506 

U.S. 917 (1992). With respect to the statute of limitations, a 

claim very well may be barred by the statute of limitations 

because Plaintiff’s allegations contain dates of July 27, 2012 

(doc. 1 at 4), July 31, 2012 (id. at 5), and April 16, 2013 (id.

at 9), which are more than two years before Plaintiff filed his 

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Complaint on or about July 7, 2015.6 (Id. at 1).

Second, because Plaintiff was an inmate when he filed his 

action, the Court may consider the application of 42 U.S.C. § 

1997e(e). This subsection, titled “Limitation on Recovery,” 

provides:

No Federal civil action may be brought by a prisoner 

confined in a jail, prison, or other correctional 

facility, for mental or emotional injury suffered 

while in custody without a prior showing of physical 

injury or the commission of a sexual act (as defined 

in section 2246 of Title 18).

42 U.S.C. § 1997e(e) (2013). 

This subsection limits the recovery of monetary damages by 

a prisoner for claims based on mental or emotional injuries, 

suffered while in custody, when no physical injury connected to 

mental or emotional injury is present. 42 U.S.C. § 1997e(e). 

Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir. 1999), vacated,

197 F.3d 1059 (11th Cir. 1999), reinstated in pertinent part,

216 F.3d 970 (11th Cir. 2000), cert. denied, 532 U.S. 1065 

(2001). A prisoner must show that that he sustained a physical 

injury greater than de minimis in order recover compensatory or 

punitive damages. Harris, 190 F.3d at 1286; Mitchell v. Brown & 

 6 Plaintiff’s signature indicates that he signed the Complaint on July 7, 

2015, and the Court received the Complaint on July 10, 2015. (Doc. 1 at 13). 

See Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir.) (“Under the 

prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the 

date it is delivered to prison authorities for mailing.. .. Absent evidence 

to the contrary, we assume that a prisoner delivered a filing to prison 

authorities on the date that he signed it.”) (citations omitted), cert. 

denied, 135 S.Ct. 241 (2014).

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Williamson Tobacco Corp., 294 F.3d 1309, 1313 (11th Cir. 2002). 

Although § 1997e(e) precludes recovery of punitive and 

compensatory damages for mental or emotional injuries 

unaccompanied by a prior physical injury, injunctive and 

declaratory relief and nominal damages are not precluded for a 

violation of a constitutional right under § 1997e(e). Al-Amin 

v. Smith, 637 F.3d 1192, 1196-97 (11th Cir.) (observing that 

other courts noted the remaining remedies are ample and the 

Constitution does not demand an individually effective remedy 

for every constitutional violation) (citations and quotation 

marks omitted), cert. denied, 555 U.S. 820 (2008); see Brooks v. 

Warden, 800 F.3d 1295, 1309 (11th Cir. 2015)(§ 1997e(e) does not 

preclude nominal damages). Because there has been no showing of 

a prior physical injury, and due to Plaintiff’s request for 

injunctive relief being deemed frivolous, § 1997e(e) will limit 

Plaintiff’s recovery in this action to nominal damages after he 

has successfully shown a violation of a constitutional right.

Third, in addition to the above the reasons for dismissing 

this action under § 1915(e)(2)(B), Plaintiff’s failure to list 

prior lawsuits in his Complaint, which he signed under penalty 

of perjury, would subject this action to being dismissed as 

malicious. See 28 U.S.C. § 1915(e)(2)(B)(i) (“the court shall 

dismiss the case at any time if the court determines that . . .) 

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the action or appeal-- (i) is frivolous or malicious[.]”). But, 

due to the vagueness of Plaintiff’s allegations, it cannot be 

determined if he would be precluded from re-filing any of the 

remaining claims on account of the expiration of the two-year 

statute of limitations if this action was dismissed without 

prejudice for maliciousness. See Stephenson v. Warden, Doe, 554 

F. App’x 835 (11th Cir. 2014) (reversing a malicious dismissal 

because the district court record did not indicate that the 

court knew the dismissal without prejudice would effectively be 

a dismissal with prejudice, nor did the record show the court 

considered whether lesser sanction would suffice). 

An action is deemed malicious when a prisoner plaintiff 

affirmatively misrepresents his prior litigation history on the 

complaint form requiring disclosure of such history and signs 

the complaint form under penalty of perjury, as such a complaint 

“constitutes abuse of the judicial process warranting dismissal 

of the case without prejudice.” Thompson v. Quinn, No. 

3:11cv533/RV/EMT, 2012 WL 6761569, at *1 (N.D. Fla. Dec. 4, 

2012) (unpublished) (collecting cases), adopted, 2013 WL 45259 

(N.D. Fla. Jan. 2, 2013); see Rivera v. Allin, 144 F.3d 719, 731 

(11th Cir. 1998) (upholding counting as a strike under § 1915(g) 

an action that was dismissed for an abuse of legal process when 

the inmate lied under penalty of perjury about a prior lawsuit), 

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overruled on other grounds by Jones v. Bock, 549 U.S. 199, 215-

17 (2007); Schmidt v. Navarro, 576 F. App’x 897, 898-99 (11th 

Cir. 2014) (unpublished) (affirming the dismissal without 

prejudice of a malicious action pursuant to § 1915(e)(B)(2)(i) 

as a sanction for the plaintiff’s abuse of process when he 

failed to disclose under penalty of perjury two prior federal 

actions on his complaint form); Harris v. Warden, 498 F. App’x 

962, 964 (11th Cir. 2012) (unpublished) (dismissing without 

prejudice an action for abuse of process when the inmate failed 

to disclose his litigation history even though the form 

complaint described the type of cases he was bound to disclose); 

Jackson v. Florida Dep’t of Corrs., 491 F. App’x 129, 132 (11th 

Cir. 2012) (unpublished) (affirming the dismissal without 

prejudice of inmate’s action as malicious when under penalty of 

perjury he represented in his complaint that he had no action 

dismissed prior to service process even though he had two), 

cert. denied, 133 S.Ct. 2050 (2013); Redmon v. Lake County 

Sheriff’s Office, 414 F. App’x 221, 223, 225-26 (11th Cir. 2011) 

(unpublished) (affirming the dismissal without prejudice of the 

inmate’s action signed under penalty of perjury when the inmate 

did not disclose a prior lawsuit when the complaint form asked 

for disclosure of all lawsuits relating to his imprisonment or 

conditions of imprisonment, regardless of his response that he 

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did not understand the form).

In the present Complaint, Plaintiff indicates that he 

previously filed one other lawsuit dealing with the same or 

similar facts in this action and which is related to his 

imprisonment. He identifies this action as Lewis v. Mack, CA 

No. 15-0273-CB-N, filed on May 21, 2015 in this Court. (Doc. 1 

at 3). This action is a habeas action. Plaintiff, however, did 

not inform the Court that prior to the present action’s filing 

near July 7, 2015,7 he filed on this Court’s docket Lewis v. 

Mack, CA No. 15-0303-WS-N (S.D. Ala. pending), near June 8, 20158

(Doc. 2), complaining about the conditions of confinement at the 

Baldwin County Corrections Center. (Subsequent to filing these 

three actions, Plaintiff filed on this Court’s docket, Lewis v. 

Campbell, CA No. 15-0418-CG-C (S.D. Ala. pending) (complaining 

about denial of access to courts and to discovery in his 

criminal case), and Lewis v. Mack, CA No. 15-0389-KD-N (S.D. 

Ala. pending) (complaining about the denial of access to 

 7 Plaintiff’s signature indicates that he signed the Complaint on July 7, 

2015, and the Court received the Complaint on July 10, 2015. (Doc. 1 at 13). 

See Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir.) (“Under the 

prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the 

date it is delivered to prison authorities for mailing. . . . Absent evidence 

to the contrary, we assume that a prisoner delivered a filing to prison 

authorities on the date that he signed it.”) (citations omitted), cert. 

denied, 135 S.Ct. 241 (2014). 8 When Plaintiff signed the Complaint, he did not date his signature. 

(Doc. 1 at 7). However, when he signed his Motion to Proceed Without 

Prepayment of Fees, which was filed with the Complaint, he dated his motion 

June 8, 2015. (Doc. 2 at 4).

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courts)).

Furthermore, PACER (“Public Access to Court Electronic 

Records”) reveals two other cases previously filed by Plaintiff 

prior to him filing the above five actions in this Court, 

namely, Lewis v. Rowley, CA No.2:92-cv-02251-DEZ (W.D. Pa. Mar. 

16, 1993) (a § 1983 action, which he voluntarily dismissed), and 

Lewis v. Rowley, CA No. 2:92-cv-02416-DEZ (W.D. Pa. Mar. 16, 

1993) (a § 1983 action, which he voluntarily dismissed). 

Thus, when Plaintiff filed the present action, he knowingly 

chose not to list his three previously filed actions. 

Nonetheless, Plaintiff proceeded to sign the present complaint 

under penalty of perjury. (Doc. 1 at 13). This type of 

behavior by a prisoner is deemed by courts to be an abuse of the 

judicial process so as to warrant the action’s dismissal as 

malicious pursuant to § 1915(e)(2)(B)(i) and to it being counted 

as a strike for § 1915(g) purposes. Rivera, supra. Thus, 

maliciousness may be one of the grounds considered for dismissal 

of this action once an amended complaint is filed clarifying the 

remaining claims. At that time, there should be specific facts, 

which include dates, which would permit the Court to determine 

if the statute of limitations on the remaining claims has 

expired. See Lufkin, 956 F.2d at 1105, 1108 n.2 (finding the 

statute of limitations is two years for a § 1983 action filed in 

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Alabama).

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed, prior to service of process, pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) because Plaintiff’s 

claims are either frivolous or fail to state a claim upon which 

relief can be granted, and that with regard to the claims upon 

which Plaintiff failed to state a claim upon which relief can be 

granted be dismissed without prejudice so Plaintiff may re-file 

them in a new action or, if he so elects, may file an amended 

complaint within the period for filing objections to the Report 

and Recommendation, for the purpose of stating a claim with 

respect to the remaining claims. See Lee, 461 F. App’x at 860.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

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accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 25th day of November, 2015. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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