United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, CHARLES A. STAMPELOS
proceeding pro se, initiated this case by filing a civil
rights complaint, ECF No. 1, and an amended motion requesting
leave to proceed in forma pauperis, ECF No. 5.
Plaintiff's amended motion was granted, ECF No. 6, and
based on Plaintiff's Trust Fund Account Statement from
the Florida Department of Corrections, he was assessed an
initial partial filing fee of $26.16 pursuant to §
1915(b). ECF No. 6. Plaintiff has paid that fee, ECF No. 7,
and the complaint has now been reviewed.
complaint is brought against two Defendants: the State of
Florida State Attorney and Gregory J. Cummings, attorney at
law. ECF No. 1 at 2-3. It appears that Mr. Cummings was
Plaintiff's criminal defense attorney and acted as
“conflict counsel.” Id. at 3. The only
facts alleged in the complaint are that Plaintiff's
public defender filed repeated notices of discovery and
repeatedly sought discovery, but the “State of Florida
fail[ed] to comply.” Id. at 5-6. Plaintiff
states that the discovery requests were made during 2008.
Id. at 5. Due to the fact that he was never given
“discovery to prepare for trial, ” Plaintiff was
convicted and on April 8, 2010, was sentenced to life in
prison plus 30 years. Plaintiff claims he was maliciously
prosecuted, id. at 6, and that his Sixth and
Fourteenth Amendment rights were violated. As relief,
Plaintiff requests a “new trial” or to be
provided a “12 year plea for excusable homicide.”
Id. at 7.
complaint against Mr. Cummings is insufficient as a matter of
law. Representation by public defenders or retained attorneys
of persons accused of criminal offenses is not “state
action” and, thus, gives rise to no liability pursuant
to § 1983 absent a conspiracy with state actors.
Richardson v. Fleming, 651 F.2d 366, 371 (5th Cir.
1981); Slavin v. Curry, 574 F.2d 1256, 1265 (5th
Cir. 1976); Wahl v. McIver, 773 F.2d 1169, 1173
(11th Cir. 1985). Plaintiff's complaint does not allege
any such conspiracy.
well established that “when performing a lawyer's
traditional functions as counsel to a defendant in a criminal
proceeding, ” a public defender is not a “state
actor” for purposes of § 1983. Polk County v.
Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70
L.Ed.2d 509 (1981)(holding that under the facts of this case,
a public defender was act acting "under color of state
law" but declining to hold that a public defender never
acts in that role). Accordingly, Plaintiff's complaint
does not state a viable claim against Mr. Cummings.
addition, a federal § 1983 claim is governed by the
forum state's residual personal injury statute of
limitations. Burton v. City of Belle Glade, 178 F.3d
1175, 1188 (11th Cir. 1999) (citing Owens v. Okure,
488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)
and Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct.
1938, 85 L.Ed.2d 254 (1985)). In Florida, a § 1983
action must be commenced “within four years of the
allegedly unconstitutional or otherwise illegal act.”
Burton, 178 F.3d at 1188 (citing Baker v. Gulf
& Western Indus., Inc., 850 F.2d 1480, 1483 (11th
Cir. 1988)); see also Uboh v. Reno, 141 F.3d 1000,
1002 (11th Cir. 1998); Kelly v. Serna, 87 F.3d 1235,
1238 (11th Cir. 1996). Because Plaintiff's claims are
based on events from 2008, those claims are barred by the
statute of limitations and cannot proceed.
Plaintiff's claim for malicious prosecution cannot
succeed considering that Plaintiff is incarcerated within the
Florida Department of Corrections. To state a § 1983
claim for malicious prosecution, a plaintiff must allege the
six elements of the state law common claim: (1) the
commencement or continuation of an original civil or criminal
proceeding; (2) the present defendant was the legal cause of
that original proceeding; (3) the bona fide termination of
the proceeding in favor of the plaintiff; (4) the absence of
probable cause for such prosecution; (5) the presence of
malice on the part of the present defendant; and (6) damages
to the plaintiff because of the proceeding. Kingland v.
City of Miami, 382 F.3d 1220 (11th Cir. 2004) (cited in
Blackshear v. City of Miami Beach, 799 F.Supp.2d
1338, 1347 (S.D. Fla. 2011)). A plaintiff's inability to
satisfy any of the six elements defeats the action.
Scozari v. Barone, 546 So.2d 750, 751 (Fla. 2d DCA
1989). Plaintiff cannot demonstrate that the proceeding
terminated in his favor because he acknowledges that he was
convicted and he remains incarcerated.
reason this action must be dismissed is because
Plaintiff's requested relief is to either order a new
criminal trial or require a “12 year plea” deal.
ECF No. 1 at 7. Taking either course of action requires
overturning his current criminal conviction. That kind of
relief is not available in a civil rights case.
are “two broad categories of prisoner petitions: (1)
those challenging the fact or duration of confinement itself;
and (2) those challenging the conditions of
confinement.” Preiser v. Rodriguez, 411 U.S.
475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also Hill
v. McDonough, 126 S.Ct. 2096, 165 L.Ed.2d 44
(2006)(holding that challenge to lethal injection procedures
may be brought in § 1983 action). Habeas corpus is the
exclusive remedy for a prisoner who challenges “the
fact or duration of his confinement and seeks immediate or
speedier release . . . .” Heck v. Humphrey,
512 U.S. 477, 481, 114 S.Ct. 2364, 2369 (1994). Where a
litigant is not challenging the fact or duration of
confinement, but rather the conditions of that confinement,
then civil rights is the proper avenue of relief. See
Porter v. Nussle, 122 S.Ct. 983, 989, 122 S.Ct. 983,
990, 152 L.Ed.2d 12 (2002) (citing McCarthy v.
Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194
(1991) and Preiser v. Rodriguez, 411 U.S. 475, 93
S.Ct. 1827, 36 L.Ed.2d 439 (1973)). A prisoner may not seek
to reduce a period of confinement through a civil rights
action. Preiser, 411 U.S. at 500, 93 S.Ct. at 1841;
Heck, 114 S.Ct. at 2372. “Simply put, if the
relief sought by the inmate would either invalidate his
conviction or sentence or change the nature or duration of
his sentence, the inmate's claim must be raised in a
§ 2254 habeas petition, not a § 1983 civil rights
action.” Hutcherson v. Riley, 468 F.3d 750,
754 (11th Cir. 2006). Accordingly, Plaintiff's requested
relief cannot be provided in this civil rights case.
respectfully RECOMMENDED that
Plaintiff's civil rights complaint, ECF No. 1, be
DISMISSED for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2), and the Order adopting this Report and
Recommendation direct the Clerk of Court to note on the
docket that this cause was dismissed pursuant to 28 U.S.C.
 Judicial notice is taken that
Plaintiff was convicted of first degree murder and aggravated
child abuse. Bines v. Crews, No. 4:13CV492-WS/CAS,
2014 WL 4373261, at *1 (N.D. Fla. Sept. 2, 2014).
Plaintiff's jury trial began on April 5, 2010, and
“the jury found him guilty as charged on both
counts.” Id. On April 8, 2010, Plaintiff was
adjudicated guilty and sentenced “to ...