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Koehler v. State

United States District Court, M.D. Florida, Jacksonville Division

November 9, 2017

Brian Keith Koehler, Plaintiff,
v.
State of Florida et al., Defendants.

          REPORT & RECOMMENDATION

          Patricia D. Barksdale United States Magistrate Judge

         Using 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[1] [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.

         28 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.

         To 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.

         Even 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.

         Under 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. Id.

         Given 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.

         State-court records indicate that, in 2001, Koehler was arrested and charged with lewd or lascivious molestation of a child under 12 years old.[2] 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.

         Besides 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. 3:05-cv-224).

         In 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.[3] 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).

         In 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. 3:10-cv-76).

         To the extent Koehler again seeks habeas relief through his latest complaint, dismissal without prejudice is warranted for the same reason.

         To 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 conviction.[4]

         To the extent Koehler seeks damages under 42 U.S.C § 1983[5] 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 ...


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