Opinion
Case No. 8:13-CV-2533-T-30MAP
2013-10-04
RANDY A. HART, Plaintiff, v. STATE OF FLORIDA, Defendant.
ORDER
Plaintiff, a State of Florida prisoner proceeding pro se, initiated this cause of action by filing a "Review of Documents" (Dkt. 1). Since the pleading seeks monetary damages, the Court construes it as a civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff names the State of Florida as defendant in this action. Plaintiff appears to challenge his convictions entered in Polk County, Florida, for grand theft and attempted burglary of a dwelling, on the ground that his attorney rendered ineffective assistance. As relief, Plaintiff seeks monetary damages and release from incarceration.
ANALYSIS
Because Plaintiff has not paid the filing fee and therefore seeks to proceed in forma pauperis in this action, this Court is required to review Plaintiff's case to determine whether his allegation of poverty is untrue, see 28 U.S.C. § 1915(e)(2)(A), or whether the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
A complaint is frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint filed in forma pauperis which fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See id. at 328. Section 1915(e)(2)(B)(i) dismissals should only be ordered when the legal theories are "indisputably meritless," id. at 327, or when the claims rely on factual allegations which are "clearly baseless." Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Initially, to the extent Plaintiff seeks monetary damages against the State of Florida, the Eleventh Amendment bars a § 1983 action against a state for monetary damages unless waived by the State or Congress. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-103 (1984). The State of Florida has not waived its Eleventh Amendment immunity, nor has Congress abrogated that immunity in § 1983 cases. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986).
Lastly, to the extent Plaintiff's requests release from incarceration and reversal of the criminal convictions, his request is not cognizable under § 1983. Plaintiff's exclusive remedy is a petition for writ of habeas corpus. See Pugh v. Smith, 333 Fed. Appx. 478 (11th Cir. June 24, 2009) (unpublished) (stating that "[a] habeas petition is the exclusive remedy for a prisoner who challenges the fact or duration of his confinement and seeks immediate release.") (citing in part Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).
ACCORDINGLY, the Court ORDERS that:
1. Plaintiff's civil rights complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) as frivolous (Dkt. 1).
2. The Clerk of Court shall enter judgment against Plaintiff, terminate all pending motions, and close this file.
3. In the event Plaintiff intended to file a § 2254 habeas petition to challenge the criminal convictions, the Clerk shall enclose a copy of the court-approved form used in filing a request for federal habeas relief pursuant to 28 U.S.C. § 2254 with Plaintiff's copy of this Order.
DONE and ORDERED in Tampa, Florida on October 4, 2013.
_________________
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE
SA:sfc
Copy to: Plaintiff pro se