United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
Patricia D. Barksdale United States Magistrate Judge
the form complaint for bringing a civil action without a
lawyer and proceeding in forma pauperis (“IFP”)
under 28 U.S.C. § 1915, Brian Koehler sues the State of
Florida, Florida Governor Rick Scott, Florida Circuit Judge
Henry Davis, former Duval County Sheriff (current United
States Representative) John Rutherford, and former Florida
Governor Jeb Bush. Doc. 1. In the jurisdictional section, he
writes, “Bradey [sic] violation of fasle inpriosnment
[sic].” Doc. 1 at 3. In the amount-in-controversy
section, he writes, “25, 000, 000.00.” Doc. 1 at
4. In the statement-of-the-claim section, he writes,
“The plantiff [sic] has sevred [sic] 15 years when
state had another suspect and DNA evdince [sic] that was
never tested to prove guilt.” Doc. 1 at 4. In the
relief section, he writes, “Have record of all felony
taken off his record and pay for lost time with
family.” Doc. 1 at 4. He provide no other details.
U.S.C. § 1915(e)(2)(B) provides that a court must
dismiss an action by a plaintiff proceeding in forma pauperis
if at any time the court determines the action is frivolous,
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
decide if a pro se, in forma pauperis complaint fails to
state a claim on which relief may be granted, a court must
construe the complaint liberally and apply the Federal Rule
of Civil Procedure 12(b)(6) standard. Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). To
survive dismissal under that standard, the complaint must
allege facts, accepted as true, that state a claim
“that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That standard asks for
less than a probability but “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id.
construing the complaint liberally in light of Koehler's
pro se status, the complaint fails to satisfy the pleading
standard. The allegations are threadbare and amount only to
legal conclusions devoid of factual allegations.
Federal Rule of Civil Procedure 15(a), a court should freely
allow a plaintiff to amend his complaint if justice so
requires. If a more carefully drafted complaint might state a
claim, a litigant proceeding without a lawyer must be given
at least one chance to amend the complaint before the court
may dismiss it with prejudice. Bryant v. Dupree, 252
F.3d 1161, 1163 (11th Cir. 2001). But dismissal with
prejudice is appropriate if granting leave to amend would be
futile. Cockrell v. Sparks, 510 F.3d 1307, 1310
(11th Cir. 2007). Granting leave to amend would be futile if
the complaint as amended would still be properly dismissed.
the parties sued (the State of Florida, the state-court
judge, and various local or state officials), the allegation
(a Brady violation resulting in imprisonment), and
the type of relief sought (clearing Koehler's record and
paying him damages for lost time with his family), it is
clear amendment would be futile.
records indicate that, in 2001, Koehler was arrested and
charged with lewd or lascivious molestation of a child under
12 years old. See State v. Koehler, No.
16-2001-CF-012068-AXXX-MA (Fla. 4th Jud. Cir. Ct.). He
pleaded guilty, his sentence was suspended, and he was placed
on probation for two years. Docs. 47- 56 (No.
16-2001-CF-012068). He later was arrested based on an alleged
probation violation, and the court found him in violation,
revoked his probation, and sentenced him to serve seven years
in prison. Docs. 100, 106, 149-55 (No. 16-2001-CF-012068). In
2003, he appealed and filed a motion for examination of DNA
evidence and to preserve evidence. Docs. 172, 178-79, 181
(No. 16-2001-CF-012068). The court denied a motion for
post-sentencing DNA testing, and he appealed. Docs. 190-94
(No. 16-2001-CF-012068). For more than a decade, he filed
motions to vacate the judgment and sentence, motions for DNA
testing, and appeals, all of which have been unsuccessful.
Docs. 195-309 (No. 16-2001-CF-012068). His final appeal was
dismissed in December 2016, Docs. 301-02, 309 (No.
16-2001-CF-012068), three months before he filed this case.
state remedies, Koehler has pursued federal remedies. In
2005, he filed a habeas petition alleging the molestation
conviction was unconstitutional because the state failed to
disclose favorable evidence and failed to perform DNA testing
despite that law enforcement “confirmed that someone
e[ls]e was mention[ed] to have sexually ass[au]lted
others.” Koehler v. Sec'y, Fla. Dep't of
Corr., No. 3:05-cv-224-J-25MCR, Doc. 1. In 2005, after
twice granting extensions of time to pay the $3 filing fee,
the Court dismissed the petition without prejudice for
failure to pay the fee. Docs. 4, 5, 6, 7, 9 (No.
September 2005, Koehler filed a new habeas petition alleging
the same claim. Koehler v. Attorney Gen., State of
Fla., No. 3:05-cv-883-J-32MMH, Doc. 1. In March 2006, he
amended the petition, Doc. 18 (No. 3:05-cv-883), and, in
August 2006, the Court denied the petition with prejudice,
Doc. 31 (No. 3:05-cv-883). The Court held Koehler had failed
to comply with the one-year limitations period in 28 U.S.C.
§ 2244 for challenging a state-court conviction; even
assuming for the sake of argument that the petition was
timely, he had not fairly presented his claim to the state
courts; and, even assuming for the sake of argument he
properly exhausted the claim in state court, the claim lacked
merit. Doc. 31 at 3-5 (No. 3:05-cv-883).
January 2010, Koehler filed another habeas petition alleging
the same claim. Koehler v. Sec'y, Dep't of
Corr., No. 3:10-cv-76-J-32TEM, Doc. 1. After taking
judicial notice of his 2005 petition, the Court dismissed the
new petition without prejudice because it was an unauthorized
second or successive petition and it appeared he was no
longer in custody on the challenged conviction. Doc. 3 (No.
extent Koehler again seeks habeas relief through his latest
complaint, dismissal without prejudice is warranted for the
extent Koehler seeks removal of the state felony conviction
from his record by some other means, dismissal without
prejudice is warranted because, under the
Rooker-Feldman doctrine, this Court is without
jurisdiction to otherwise review the state felony
extent Koehler seeks damages under 42 U.S.C §
against the State of Florida, Governor Scott, and former
Governor Bush in their official capacities, dismissal with
prejudice is warranted because neither a state nor its
officials sued in their official capacities are
“persons” subject to § 1983 liability for
damages, see Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989), and they are absolutely
immune from ...