United States District Court, M.D. Florida, Fort Myers Division
JEROME W. WAGNER, Plaintiff,
JEB BUSH, JANET RENO, EVERETT RICE, LINDA K. HILLIARD and BERNIE MCCABE, Defendants.
ORDER OF DISMISSAL 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
This matter comes before the Court upon initial review of the
file. Plaintiff, who is civilly confined to the Florida Civil
Commitment Center (FCCC) under the Jimmy Ryce Civil
Commitment Act,  filed a complaint under 42 U.S.C. §
1983 (Doc. 1) on March 16, 2018. Plaintiff seeks to proceed
in forma pauperis (Doc. 2). Consequently, the Court
is required to review the complaint to determine whether it
is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e) (2) (B)
(i)-(iii); see also Troville v. Venz, 303 F.3d 1256,
1260 (11th Cir. 2002) (holding that, under 28 U.S.C. §
1915(e) (2) (B) (ii), the complaint of a nonprisoner
proceeding in forma pauperis may be dismissed prior
to service for failure to state a claim).
a party must be given at least one opportunity to amend
before the district court dismisses the complaint.”
Corsello v. Lincare, Inc. 428 F.3d 1008, 1014 (11th
Cir. 2005). However, if an amendment would be futile, the
district court may deny leave to amend. Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Additionally, the Court must read the plaintiff's pro
se allegations liberally. Haines v. Kerner, 404
U.S. 519 (1972); Miller v. Stanmore, 636 F.2d 986,
988 (5th Cir. 1981). Upon review, the Court concludes that
the Complaint fails to state a claim upon which relief can be
granted and an amendment would be futile. Thus, the Court
finds dismissal of this case is required before service of
the Complaint. 28 U.S.C. § 1915(e) (2) (B) (ii).
to the Complaint, Plaintiff was “arrested” in
November 1997, and eventually “charged with 2nd degree
felony of sexual battery and denied a trial by jury and a
bench trial, [and] was only offered a plea bargain.”
Doc. 1 at 5. Plaintiff denies that he had done anything wrong
and contends that “the state never had any evidence or
witnesses to prove the crime, [and] the victim couldn't
identify [him] as the attacker by a photograph from a police
mug shot.” Id. Plaintiff further alleges that
during questioning he was “confused” and
“couldn't think straight” and was not aware
that his interrogation was being video-taped. Id. at
5. Plaintiff generally complains about the conditions of his
confinement while in pre-trial detention, but acknowledges
that he accepted a plea. Id. at 6. Plaintiff states
he filed a state habeas “to take my case back to
court” in order “to withdraw my plea of guilty to
not guilty” but an individual named Janet Dotterweich
“copied” his habeas and attributed it to her son
who was released instead of Plaintiff. Id. at 7.
Plaintiff names these defendants: Linda K. Hillard, a
detective with the Pinellas County Homicide Division; Bernie
McCabe, a state attorney from Pinellas County; Jeb Bush,
(former) Governor of Florida; Janet Reno, (former) Attorney
General; and Everette Rice, Pinellas County Sheriff, because
they were “in office when all this happened.”
Id. at 8. As relief, Plaintiff seeks release from
civil confinement and “900 zillion, 100 mill.”
Id. at 9.
outset, the relief Plaintiff seeks-release from civil
commitment-is not available in a § 1983 action. The
exclusive remedy for Plaintiff to challenge his civil
detention is through a timely habeas corpus action.
Preiser v. Rodriquez, 411 U.S. 475, 487 (1973)
(noting differences between § 1983 actions and habeas
corpus actions). Consequently, if Plaintiff wishes to
challenge the fact or duration of his current civil
confinement, Plaintiff must file a habeas action.
extent that Plaintiff is attempting to articulate a claim
about the general conditions of his pretrial detention in
1997, such claims are barred by the statute of limitations.
Florida's four-year statute of limitations for personal
injuries applies to claims for deprivations of rights under
§ 1983. Chappell v. Rich, 340 F.3d 1279, 1283
(11th Cir. 2003).
it is now
Complaint (Doc. 1) is DISMISSED under §
1915(e) (2) (B) (ii) for the reasons set forth above.
The Clerk of Court shall send Plaintiff a petition for writ
of habeas corpus under 28 U.S.C. § 2254, terminate any
pending motions, enter judgment and close this case.
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