KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Michael J. Green ("Green"), proceeding pro se and in forma pauperis (see Doc. 12), initiated this action by filing a complaint under 42 U.S.C. §§ 1983 and 1985 (Doc. 1). Currently pending are the following matters:
Green has filed responses (Docs. 25, 27, 28, 33, 36) in opposition to the various motions to dismiss. Defendants the State of Alabama and Judge Wiggins have filed a reply (Doc. 34) to Green's response to their motion (though the reply simply restates, word-for-word, the arguments presented in their motion). The above-listed motions to dismiss are now under submission and are ripe for adjudication.
In addition to the defendants who have filed motions to dismiss, the Alabama Department of Corrections ("ADOC") was also ordered served with process in this action by the undersigned (see Doc. 12 at 4, ¶ 3.f), and a Notice of Lawsuit and Request for Waiver of Service of Summons was issued to ADOC along with the other Defendants (see Doc. 13). However, ADOC is the only entity ordered served who has not returned a waiver of service or otherwise appeared in this action. This appears to be an oversight on the part of assistant general counsel for the Alabama Department of Corrections, counsel of record for Warden Price in this action. While Warden Price's special report asserts that Warden Price is "the sole Correctional Defendant" in this action, the remainder of the special report asserts numerous arguments on behalf of "Defendants." (See Doc. 32). Moreover, Warden Price is being sued in both her individual and official capacities. "Suing individuals in their official capacities is `another way of pleading an action against an entity of which an officer is an agent.'" Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Finally, as Green is proceeding in forma pauperis, the Court has a duty under 28 U.S.C. § 1915(e)(2) to dismiss this action if it determines, inter alia, that the action is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Upon consideration, the undersigned will treat Warden Price's Special Report/Motion to Dismiss (Doc. 32) as also being filed on behalf of ADOC.
These matters have been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b)(1), and SD ALA Local Rule 72.2(c)(4). Upon consideration, and for the reasons stated herein, it is
The Defendants' respective motions move for dismissal under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." "In ruling on a 12(b)(6) motion, [a c]ourt accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff." E.g., Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). "`While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288-89 (11th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, "`[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).'" Id. (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion to dismiss, a complaint must now contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570.
The Supreme Court has "held that `the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.'" Id. at 1290 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "The Court suggested that courts considering motions to dismiss adopt a `two-pronged approach' in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, `assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950)).
The Eleventh Circuit has explicitly held that the pleading standards of Twombley and Iqbal govern § 1983 claims. See Randall v. Scott, 610 F.3d 701, 708 n.2 (11th Cir. 2010). "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . ." E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and quotations omitted). Nevertheless, "a court may not `serve as de facto counsel for a party' or `rewrite an otherwise deficient pleading in order to sustain an action.'" Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds, see Randall, 610 F.3d at 709).
This appears to be Green's latest federal action arising from his Alabama criminal proceedings. Green first challenged those proceedings with this Court in a habeas action under 28 U.S.C. § 2254,
Green v. Price, 439 F. App'x 777, 779-80 & n.1 (11th Cir. 2011) (headings omitted).
This Court initially dismissed Green's habeas petition as time-barred. See Green v. Price, Civil Action No. 2:09-0105-KD-N, 2010 WL 936690 (S.D. Ala. Mar. 15, 2010). The Eleventh Circuit subsequently vacated that decision and remanded. See Green, 439 F. App'x 777. On remand, this Court found Green's habeas petition timely but denied it on the basis that Green had procedurally defaulted his claims by not giving the state courts a full opportunity to consider the arguments raised in his habeas petition. See Green v. Price, Civil Action No. 09-00105-KD-N, 2012 WL 6845670 (S.D. Ala. Dec. 12, 2012),
On May 10, 2013, Green initiated this action by filing his Complaint
Judge Chittom, a municipal court judge for the City of Selma, presided over a non-jury trial of Green for an alleged violation of either Ala. Code § 13A-6-65 ("Sexual misconduct," a "Class A misdemeanor") or § 13A-6-67 ("Sexual abuse in the second degree," a "a Class A misdemeanor, except that if a person commits a second or subsequent offense of sexual abuse in the second degree within one year of another sexual offense, the offense is a Class C felony"). (Doc. 1 at 5, 10). At the time of the trial Green was "serving a Term period of Eighteen Months weekends only, and a Conditional Probation period of Three years under, the State of Alabama, 4
On September 21, 2006, Judge Wiggins of the Circuit Court of Dallas County, Alabama, imposed a sentence of 10 years in prison on Green, with Green's municipal court conviction before Judge Chittom serving as a factor in this sentence. (See id. at 6, 11). Dallas County District Attorney Jackson apparently argued before Judge Wiggins that Green had no right to counsel. (Id. at 11). Green remained in the custody of the Alabama Department of Corrections at the Bibb County Correctional Facility, then headed by Warden Price, until September 17, 2010.
As set forth initially in the undersigned's service order (Doc. 12 at 1-3), Green's Complaint (Doc. 1) asserts the following claims:
a. Judge Chittom, individually and in her capacity as the City of Selma Municipal Judge, is sued for her role in presiding over a non-jury trial for, according to Green, a violation of Ala. Code § 13A-6-65 (Sexual misconduct), subsequently amended to a violation of Ala. Code § 13A-6-67 (Sexual abuse in the second degree). (Doc. 1 at 5, 10). Judge Chittom is also alleged to be "a policy maker for the City of Selma." (Id. at 10).
b. The City of Selma has been named principally in conjunction with the conduct of Judge Chittom. For example, Green alleges only "The City of Selma, Alabama Municipal Court City Judge Valerie Chittom, presided over a non jury trial [sic] . . ." (Doc. 1 at 5). He also alleges a "Sixth Amendment violation, against the City of Selma for Injunctive Relief" but presents no factual basis for this allegation. The reference to an absence of counsel is made only in connection with the "City Conviction," which resulted from the non-jury trial conducted by Judge Chittom. (Id. at 9). Green makes it clear that he is raising these claims against the City of Selma because, "as its policy maker Hon. Judge Valarie Chittom . . . Violated the Basic principle of The Sixth Amendment." (Id. at 10).
c. Dallas County Circuit Judge Wiggins, in his official capacity "as a State Officer . . . having Jurisdiction, over the lower Court Ruling [and] Hon. Valarie K. Chittom," is sued for his failure to "dismiss the Conviction or Hold the proceedings void." (Doc. 1 at 11). Judge Wiggins is also sued in his official capacity for using the "Uncounseled Conviction to impose a 10 years Jail term [on] September 21, 2006." (Id.).
d. District Attorney Jackson, in his official capacity, is sued for arguing that Green had no right to counsel in the case before Judge Chittom and for conspiring with the City of Selma to violate his rights. (Id.)
e. Cheryl Price, former Warden of Bibb County Correctional facility, in her individual capacity and in her official capacity as a "State Officer," is sued for unlawful imprisonment and failure to "timely release" Green. (Id. at 11-12).
f. ADOC is also sued for unlawful imprisonment of, and failure to "timely release," Green. (Id. at 12).
g. The State of Alabama appears to be sued for the conduct of Judge Wiggins, District Attorney Jackson, and Warden Price, because these three defendants have been identified as "State Officer[s]." (Id.) No other factual basis is offered.
Green seeks monetary damages and declaratory and injunctive relief in this action, though it is unclear against whom each is sought.
Judge Chittom, the City of Selma, Warden Price, and ADOC argue that Green's claims for damages are barred based on the Supreme Court's reasoning in Heck v. Humphrey, 512 U.S. 477 (1994). (See Doc. 16 at 2-3; Doc. 32 at 8). In Heck, the Court held
512 U.S. at 486-87 (footnotes omitted). Accord Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) ("Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L. Ed. 2d 383 (1994), a state prisoner may not bring a claim for damages under 42 U.S.C. § 1983 `if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction.' Id. at 487, 114 S.Ct. 2364."). More recently, the Supreme Court, analyzing Heck and other cases, has held that "[t]hese cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). See also id. at 78 ("[A] prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) instead." (internal citations and quotation omitted)).
Green has not claimed that any of his convictions or his sentence have been invalidated. However, it is undisputed that Green is no longer in state custody (at least for the convictions that are the subject of this lawsuit). Most recently, the Court of Appeals for the Eighth Circuit has discussed the split in authority regarding the application of Heck's so-called "favorable termination" rule to non-prisoner § 1983 plaintiffs, for whom habeas relief is no longer available:
In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L. Ed. 2d 43 (1998), the Court then addressed a habeas corpus petition brought by a former inmate who sought to invalidate an order revoking his parole. Because the plaintiff had completed the entire term of imprisonment underlying the parole revocation, the Court ruled that the plaintiff's petition was moot. In a concurring opinion, Justice Souter wrote that although the habeas petition was moot, the plaintiff was free to bring an action under § 1983. He renewed his disagreement with footnote 10 in Heck, where the Court had explained that the principle barring collateral attacks is not rendered inapplicable by the fact that the plaintiff is no longer incarcerated. Id. at 19-21 (Souter, J., concurring). Justice Ginsburg, who had joined the opinion of the Court in Heck, also wrote separately. Citing Justice Frankfurter's aphorism that "[w]isdom too often never comes, and so one ought not to reject it merely because it comes late," Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L. Ed. 259 (1949) (Frankfurter, J., dissenting), Justice Ginsburg declared that she had "come to agree" with Justice Souter that "[i]ndividuals without recourse to the habeas statute because they are not `in custody' (people merely fined or whose sentences have been fully served, for example) fit within § 1983's `broad reach.'" Spencer, 523 U.S. at 21 (Ginsburg, J., concurring).
Newmy v. Johnson, No. 13-2756, 2014 WL 3397798, at *1-2 (8th Cir. July 14, 2014) (published).
In observing that "[t]he Eleventh Circuit has nibbled on the edges of this issue but has yet to confront it directly[,]" the Middle District of Alabama conducted the following overview of relevant case law from this circuit:
Barnes v. City of Dothan, 842 F.Supp.2d 1332, 1337-38 (M.D. Ala. 2012) (Fuller, J.) (one footnote omitted), reconsideration denied, No. 1:11-CV-201-MEF, 2012 WL 484980 (M.D. Ala. Feb. 14, 2012). Upon consideration of this authority, Barnes held "that Heck's favorable termination rule applies to § 1983[ and § 1985] claims brought by a plaintiff who never had access to federal habeas review." Id. at 1338. In so doing, the Middle District explained that, while reading Heck's "favorable termination" rule as
Id.
Upon considering the relevant Eleventh Circuit authority, Barnes held that Heck should apply to a plaintiff who "never [even ]had access to federal habeas review." Based on this determination, the undersigned finds that Heck is easily applied to Green's claims in this action, where Green did have access to, and did in fact pursue, federal habeas review of his underlying state criminal proceedings.
Green's claims against the State of Alabama, the City of Selma, Judge Chittom, Judge Wiggins, and District Attorney Jackson are for alleged deprivations of constitutional due process and right to counsel occurring at his trials/hearings before Judges Chittom and Wiggins, while his claims against Warden Price and ADOC arise from confinement resulting from the purportedly unconstitutionally-obtained conviction handed down by Judge Chittom. "As the Supreme Court noted, the most obvious example of an action barred by Heck is one in which the plaintiff actually `seek[s] damages directly attributable to conviction or confinement.'" Hughes, 350 F.3d at 1160 (quoting Heck, 512 U.S. at 487 n.6). See also Wilkinson, 544 U.S. at 81-82 (applying this principle to claims for equitable relief). Green's claims against the Defendants are clearly of this variety. Accordingly, the claims against all Defendants are due to be
Judge Chittom, the City of Selma, District Attorney Jackson, Warden Price, and ADOC assert that Green's § 1983 claims against them are barred by the applicable statute of limitations. (See Doc. 16 at 3; Doc. 19 at 2, ¶ 11; Doc. 32 at 7).
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (per curiam). See also McNair v. Allen, 515 F.3d 1168, 1173-74 (11th Cir. 2008) ("All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought . . . It is well established that a federal claim accrues when the prospective plaintiff `knows or has reason to know of the injury which is the basis of the action.'" (quoting Corn v. City of Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir. 1990))).
Heck noted that its holding "makes it unnecessary for us to address the statute-of-limitations issue wrestled with by the Court of Appeals," as "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." 512 U.S. at 489-90 (1994). Here, there is no indication that Green's underlying conviction or sentence has been invalidated. Thus, to the extent Green asserts claims barred by Heck, the statute-of-limitations defense does not apply to those claims. However, to the extent Green asserts claims not barred by Heck, the undersigned agrees with Judge Chittom, the City of Selma, and District Attorney Jackson that Green's claims against them in this action accrued, at the latest, on September 21, 2006, the date his purportedly unconstitutionally-obtained conviction before Judge Chittom was used by Judge Wiggins to sentence Green to prison. The undersigned also agrees with Warden Price and ADOC that Green's claims against them accrued, at the latest, on September 27, 2010, the date Green was released from his prison term resulting from his proceedings before Judges Chittom and Wiggins. Green's Complaint (Doc. 1) was filed in May 2013, well over two years from either of those dates. Accordingly, to the extent Green asserts claims in this action against Judge Chittom, the City of Selma, District Attorney Jackson, Warden Price, and ADOC that are not barred by Heck, those claims are due to be
The City of Selma has moved for dismissal only on the bases of Heck and the statute of limitations. (See Docs. 15-16). Claims dismissed as barred by Heck are due to be dismissed without prejudice, to allow a plaintiff to refile if and when the "favorable termination" requirement is met. See, e.g., Barnes, 842 F. Supp. 2d at 1339-40 ("For the reasons discussed above, Nick McElveen's Motion to Dismiss is hereby GRANTED and Barnes's Complaint is DISMISSED without prejudice. The complaint may be re-filed upon satisfaction of Heck's favorable termination requirement." (record citations omitted)). Moreover, "[d]ismissal of a complaint, without prejudice, does not allow a later complaint to be filed outside the statute of limitations." Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004). Accordingly, all claims asserted against the City of Selma in this action are due to be
Judge Chittom, Judge Wiggins, and District Attorney Jackson argue that they are immune from suit in this action. It is well established that "[j]udges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the `"clear absence of all jurisdiction."'" Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per curiam) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Accord Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (per curiam). "This immunity applies even when the judge's acts are in error, malicious, or were in excess of his or her jurisdiction." Bolin, 225 F.3d at 1239 (citing Stump, 435 U.S. at 356). "The relevant jurisdiction is `jurisdiction over the subject matter.'" Muhammad v. Bethel-Muhammad, Civil Action No. 11-0690-WS-B, 2012 WL 1854564, at *3 (S.D. Ala. May 21, 2012) (Steele, C.J.) (quoting Stump, 435 U.S. at 357).
"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 before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity." Sibley, 437 F.3d at 1070 (citing Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir. 1983)). Applying the factors set forth in Sibley, it is clear that all of Green's claims asserted against the judge defendants are based on actions taken in their judicial capacity, and Green has not made any allegation or argument suggesting that either judge acted in the "clear absence of all jurisdiction."
Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (per curiam) (citations and quotations omitted). See also Bolin, 225 F.3d at 1242 ("Prosecutors are also entitled to absolute immunity from damages for acts or omissions associated with the judicial process, in particular, those taken in initiating a prosecution and in presenting the government's case."); Marx v. Gumbinner, 855 F.2d 783, 789 n.10, 790 (11th Cir. 1988) (concluding that prosecutors have absolute immunity for rendering legal advice to police officers concerning the existence of probable cause to arrest). While "prosecutorial immunity does not apply when the prosecutor acts outside the ambit of activities intimately associated with the judicial process[,]" Hart, 587 F.3d at 1296 (quotation marks omitted), taking Green's allegations against Jackson as true, Jackson's actions clearly took place in his role as advocate for the State of Alabama.
"`[M]onetary damages indisputably are prohibited by judicial immunity.'" Muhammad, 2012 WL 1854564, at *4 (quoting Pulliam v. Allen, 466 U.S. 522, 543 (1984)). However, "`judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.'" Id. (quoting Pulliam, 466 U.S. at 541). Nevertheless, the Pulliam "decision has been partially abrogated by statute. Specifically, in 1996, Congress enacted the Federal Courts Improvement Act (`FCIA'), Pub. L. No. 104-317, 110 Stat. 3847 (1996), in which it amended § 1983 to provide that `injunctive relief shall not be granted' in an action brought against `a judicial officer for an act or omission taken in such officer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.'" Bolin, 225 F.3d at 1242. Additionally, "prosecutors are not immune from claims for injunctive relief . . ." Id. (citing Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981) ("[P]rosecutors do not enjoy absolute immunity from [declaratory and injunctive relief] claims.")). Accord Rolle v. Edmondson, 443 F. App'x 511 (11th Cir. 2011) (per curiam).
To the extent Green asserts claims for injunctive relief against the judges and District Attorney Jackson, however, these claims fail on the face of his complaint. The Eleventh Circuit has "held that, `[i]n order to receive declaratory or injunctive relief, plaintiffs must establish that there was a violation, that there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence of an adequate remedy at law.'" Sibley, 437 F.3d at 1073 (quoting Bolin, 225 F.3d at 1242). As all of Green's claims against the judges and Jackson relate to alleged constitutional deprivations during his criminal proceedings before the judges, Green cannot show the absence of an adequate remedy at law — the normal appellate process. See id. at 1073-74 ("In Bolin, we held that a plaintiff was ineligible for declaratory relief, because he had an adequate remedy at law—specifically, the right to appeal to this court or up the state appellate courts and to petition the Supreme Court for certiorari. Id. at 1243. Sibley is ineligible for equitable relief because he had access to the appellate process, a remedy at law, and, thus, his proposed claim for declaratory relief against Judges Schwartz and Goderich would have been futile.").
Accordingly, Green's claims against Judge Chittom, Judge Wiggins, and District Attorney Jackson are due to be
The State of Alabama, ADOC, Warden Price, and Judge Wiggins all assert that they are entitled to immunity in this action under the Eleventh Amendment of the United States Constitution.
Id. at n.3.
ADOC is a department of the State of Alabama. See Haley v. Barbour Cnty., 885 So.2d 783, 788 (Ala. 2004). "An Alabama state judge such as Judge [Wiggins] constitutes a state officer and partakes of the state's Eleventh Amendment immunity." Muhammad, 2012 WL 1854564, at *5 (citing Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996) ("As for the damages awarded against [Circuit ]Judge Conger in his official capacity, this relief is barred by the sovereign immunity of his then employer, the State of Alabama.")). Alabama prison officials sued in their official capacity also enjoy the state's Eleventh Amendment immunity. See, e.g., Johnson v. Deloach, 692 F.Supp.2d 1316, 1325 (M.D. Ala. 2010).
Jacoby v. Baldwin Cnty., Civil Action No. 12-0640-CG-N, 2014 WL 2641834, at *7 (S.D. Ala. June 13, 2014) (Granade, J., adopting the recommendation of Nelson, M.J.). Accord Carr v. City of Florence, Ala., 916 F.2d 1521, 1524-25 & n.2 (11th Cir. 1990).
Thus, the State of Alabama and its officials are immune from money damages in this action. Moreover, because Green's claims against the state and its officials clearly intend only to "adjudicate the legality of past conduct," he is not entitled to prospective injunctive relief against these defendants. As such, Green's claims against the State of Alabama, ADOC, and Judge Wiggins and Warden Price in their official capacities are due to be
Alternatively, "[s]tates . . . no longer need to rely exclusively on eleventh amendment immunity to avoid liability . . . in section 1983 cases. In Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L. Ed. 2d 45 (1989), the Supreme Court held that states . . . are not `persons' subject to liability under 42 U.S.C. § 1983." Carr, 916 F.2d at 1525 n.3. Moreover, "[s]uing individuals in their official capacities is `another way of pleading an action against an entity of which an officer is an agent.'" Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) (quoting Kentucky v. Graham, 473 U.S. at 165). As such, "[a] state, a state agency, and a state official sued in his official capacity are not `persons' within the meaning of § 1983, thus damages are unavailable . . ." Id. (citing Will, 491 U.S. at 71). "Any possible claim under § 1985 is doomed for the same reason." Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). While "a state official sued in his official capacity is a person for purposes of § 1983 when prospective relief, including injunctive relief, is sought[,]" Edwards, 49 F.3d at 1524 (citing Will, 491 U.S. at 71 n.10), Green's allegations do not establish that he is entitled to such relief, see supra. As such, Green's § 1983 claims against the State of Alabama, ADOC, and Judge Wiggins and Warden Price in their official capacities, are due to be
In accordance with the above-stated reasoning, the undersigned Magistrate Judge
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. 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.
ADOC's online prisoner locator (
The undersigned finds that Green was given fair notice that Heck would be applied in these proceedings. First, the undersigned's order to serve the Defendants with the Complaint explicitly raised the issue. (See Doc. 12 at 5 n.2 [Service Order] ("It is requested that defendants consider addresses [sic] the applicability, if any, of Heck v. Humphrey . . ."). Second, the other Defendants have moved for dismissal under Heck; moreover, Green has not addressed this argument in
Additionally, the Eleventh Circuit has permitted sua sponte dismissal pursuant to Heck. See Thompson v. Hicks, 213 F. App'x 939, 942 (11th Cir. 2007) ("The district court did not consider the merits of Thompson's § 1983 complaint because it [sua sponte ]dismissed the complaint after determining that a judgment in Thompson's favor would necessarily imply the invalidity of his conviction and that his action was barred under Heck . . .The district court further determined that Thompson had produced no evidence that his underlying conviction had been invalidated. Thus, the district court properly dismissed Thompson's complaint under Heck . . ."); Cobb v. Florida, 293 F. App'x 708 (11th Cir. 2008) (affirming sua sponte dismissal of pro se prisoner's § 1983 action as barred by Heck). See also Dixon v. Chrans, 101 F.3d 1228, 1231 (7th Cir. 1996) ("Dixon apparently prefers to go for broke and asks us for an out-and-out reversal of the district court order. He requests that judgment be entered in his favor. He contends that because we decided in Rooding that Heck set out an element of the claim, rather than a jurisdictional prerequisite to suit, and because defendants did not argue Heck in the district court, the issue is waived. We are asked to enter judgment for him even though under Heck he does not yet have a claim. Given the fact that Heck grows out of well-established law, going back at least to Preiser v. Rodriguez, we decline to close our eyes to reality.").
