United States District Court, M.D. Florida, Fort Myers Division
JEROME W. WAGNER, Plaintiff,
STATE OF INDIANA, STATE OF FLORIDA, and FLORIDA LEGISLATOR, Defendants.
ORDER OF DISMISSAL
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on initial review of the file.
Plaintiff is proceeding pro se and is civilly detained at the
Florida Civil Commitment Center (FCCC) pursuant to the Jimmy
Ryce Act Fla. Stat. §§ 394.910 et seq. Plaintiff
initiated this action by filing a Civil Rights Complaint Form
for FCCC Residence on April 23, 2018.
alleges that the State of Indiana sold his childhood records
to the State of Florida and the Florida Legislature used his
childhood records to pass the Jimmy Ryce Act. Plaintiff says
his 1982 case in Indiana was named Jimmy Ryce because Jimmy
is easier to remember than his name Jerome, and the
University of Indiana played in the Rice Bowl.
Complaint continues with what appears to be a habeas petition
arguing that he was arrested for a different kind of charge
that was not a sex crime or offense. (Doc. 1 at 6). Even
Plaintiff's claim here is difficult to piece together.
Plaintiff avers that there just has to be an arrest, your
identification run through the law enforcement computer, and
be white, black, Hispanic, and male to fit the criteria to be
charged with a sex crime. Id. Plaintiff was charged
with one count of second degree felony sexual battery.
Plaintiff claims that there were no witnesses, no DNA, or
even a victim in his case. He claims the only evidence
against him was a single 911 call and hang up. He states that
his first habeas corpus was denied without even a chance to
go to court. As damages, Plaintiff demands 900 zillion
dollars and release from the FCCC.
seeks to proceed in forma pauperis. (Doc. 2).
Despite Plaintiff's non-prisoner status this Court is
required to review his 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.
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).
case, Plaintiff's § 1983 Complaint is subject to
dismissal under § 1915 for failure to state a claim. In
any § l983 action, the initial inquiry must focus on
whether the two essential elements to a § l983 action
(1) whether the person engaged in the conduct complained of
was acting under color of state law; and (2) whether the
alleged conduct deprived a person of rights, privileges or
immunities guaranteed under the Constitution or laws of the
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303
(11th Cir. 2001).
civil rights Complaint is essentially nonsensical and
frivolous. Plaintiff does not name any specific individuals
that deprived him of a civil right nor does he identify any
rights that were violated. Based upon the factual allegations
in his Complaint, it is improbable ― even if given the
opportunity to cure ― that Plaintiff could ever raise a
cognizable cause of action.
extent Plaintiff seeks a writ of habeas corpus and release
from his civil detainment, said relief is not available in a
§ 1983 cause of action. Plaintiff must pursue habeas
relief under 28 U.S.C. § 2254. An individual seeking to
challenge his conviction or confinement files a
"petition for writ of habeas corpus" pursuant to
§ 2254. 28 U.S.C. § 2254(a). Claims challenging the
fact of conviction or duration of the sentence "fall
within the 'core' of habeas corpus, " while
claims challenging the conditions of confinement may be
brought in a civil rights action under 42 U.S.C. § 1983.
Nelson v. Campbell, 541 U.S. 637 (2004); see
also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(holding that "when a state prisoner is challenging the
very fact or duration of his physical imprisonment and the
relief he seeks is a determination that he is entitled to
immediate release or speedier release from that imprisonment,
his sole federal remedy is a writ of habeas corpus").
Thus, a civil rights action under § 1983 is the
appropriate relief when a state prisoner constitutionally
challenges the conditions of his confinement, but not the
fact or length of his incarceration. Preiser, 411
U.S. at 499. See also Cook v. Baker, 139 Fed.Appx.
167, 168 (11th Cir. 2005).
Plaintiff's Complaint lacks merit on both facts and law,
it will be dismissed pursuant to 28 U.S.C. §
1915(e)(B)(i). Should Plaintiff seek to be released from his
civil commitment because he claims he was ...