United States District Court, N.D. Florida, Tallahassee Division
CRAIG LEWIS BASSETT, D.O.C. # W26112, Plaintiff,
GOVERNOR RICK SCOTT, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
proceeding pro se, was granted leave to proceed in forma
pauperis and assessed an initial partial filing fee. ECF No.
9. Plaintiff has paid the partial filing fee, ECF No. 11, and
it is now appropriate to review his amended civil rights
complaint, ECF No. 6, which was filed under 42 U.S.C. §
1983 against the Governor of the State of Florida.
to review of Plaintiff's allegations, Plaintiff has filed
a motion requesting the fee be waived due to insufficient
funds. ECF No. 12. As the fee was paid four days before
Plaintiff's motion was filed, the motion should be denied
as moot. Additionally, reducing the balance of an inmate bank
account by purchasing items in the commissary does not
provide good cause to relieve Plaintiff of his obligation to
pay the filing fee.
pending in this case is Plaintiff's motion requesting
class action certification. ECF No. 8. A prerequisite for
class action certification is a finding by the Court that
“the representative parties will fairly and adequately
protect the interests of the class.” Fed.R.Civ.P.
23(a)(4). It is well established, however, that pro se
plaintiffs “cannot be an adequate class
representative.” Gray v. Levine, 455 F.Supp.
267, 268 (D. Md. 1978) (citing Oxendine v. Williams,
509 F.2d 1405, 1407 (4th Cir. 1975). Courts repeatedly
decline to allo pro se prisoners to litigate a case on behalf
of other prisoners. Johnson v. Brown, 581 Fed.Appx.
777, 781 (11th Cir. 2014) (holding that a pro se litigant
“cannot bring an action on behalf of his fellow . . .
inmates”); Bass v. Benton, 408 Fed.Appx. 298,
299 (11th Cir. 2011) (affirming dismissal of former
prisoner's pro se class action civil rights complaint
because the pro se plaintiff “may not represent the
plaintiffs in a class action suit”). Plaintiff's
motion should be denied because he cannot bring a pro se
complaint as a class action lawsuit.
amended complaint asserts that in October of 2004, he asked
his defense counsel to inform the jury “of the
mandatory life without parole sentence” he would face
if he was convicted. ECF No. 6 at 5. Plaintiff was informed
that judicial rules forbid doing so and he was subsequently
found guilty. Id. Plaintiff alleges that years later
he discovered that was incorrect and “the law in
Florida mandated a jury penalty instruction.”
Id. Even accepting those alleged facts as true and
correct, those events reveal no involvement by Governor Rick
Scott, the only Defendant named in this case.
only factual allegations alleged which pertain to Governor
Scott were that in December 2015, Plaintiff “notified
the governor of the illegal paradox that existed” and
requested “he should use his executive powers to
intervene.” ECF No. 6 at 6. Plaintiff said he received
“no response.” Id. Then in March 2017,
Plaintiff alleged that he sent “a notice of intent to
file suit” but, once again, “[t]he Governor did
not respond.” Id.
facts do not reveal that the Defendant Governor violated
Plaintiff's constitutional rights. “To state a
claim under § 1983, a plaintiff must allege facts
showing that the defendant's act or omission, done under
color of state law, deprived him of a right, privilege, or
immunity protected by the Constitution or laws of the United
States.” Emory v. Peeler, 756 F.2d 1547, 1554
(11th Cir. 1985); Dollar v. Haralson County, 704
F.2d 1540, 1542-43 (11th Cir.), cert. denied, 464 U.S. 963,
104 S.Ct. 399, 78 L.Ed.2d 341 (1983). In other words,
Plaintiff must allege that Defendant “deprived him of a
right secured by the ‘Constitution and laws' of the
United States” and that the Defendant did so
“under color of any statute, ordinance, regulation
custom, or usage of any State. . . .” Fadjo v.
Coon, 633 F.2d 1172, 1174-1175 (5th Cir. 1981) (quoting
Adickes v. S. H. Kress & Co., 398 U.S. 144, 150,
90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970)). Because
Plaintiff lacks a constitutional right to have the Governor
respond to his communications, he has not alleged facts
sufficient to state a claim under § 1983 against the
it appears that Plaintiff brought this civil rights action in
an attempt to pursue habeas relief. ECF No. 6 at 7. Plaintiff
seeks a declaratory judgment invalidating either §
918.10 or Rule 3.390(a) which “will allow the
deprivation of the penalty instruction to be raised in state
courts.” Id. Plaintiff contends that resetting
the date of his conviction “will allow a means to seek
federal relief if state courts refuse to recognize the error
. . . .” Id.
rights case cannot be used to seek relief which is
exclusively available through a petition for habeas corpus.
The Eleventh Circuit explained why Plaintiff's claims
cannot proceed in Wells v. Attorney Gen., Fla., 470
Fed.Appx. 754, 755 (11th Cir. 2012):
A prisoner convicted and sentenced under state law may seek
federal relief in two primary ways: (1) a petition for habeas
corpus, 28 U.S.C. § 2254, or (2) a complaint under 42
U.S.C. § 1983. Hutcherson v. Riley, 468 F.3d
750, 754 (11th Cir. 2006). These two avenues of relief are
mutually exclusive. If a claim can be raised in a federal
habeas petition, that same claim cannot be raised in a §
1983 civil rights complaint. Id. The line of
demarcation between a § 1983 claim and a § 2254
habeas claim is based on how the claim relates to a
prisoner's conviction or sentence. Id.
‘[H]abeas corpus is the exclusive remedy for a state
prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release.'
Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir.
1995) (quotation omitted). Thus, declaratory or injunctive
relief claims that challenge the validity of the
prisoner's conviction or sentence and seek release are
cognizable only through a § 2254 petition, and not under
§ 1983. Id.
Wells, 470 Fed.Appx. at 755. The Eleventh Circuit
affirmed the district court's dismissal of the §
1983 complaint as a challenge to “the Florida statutes
under which he was convicted and sentenced because the claims
effectively were a challenge to the validity of his
conviction and sentence and were not cognizable under §
1983.” Wells, 470 Fed.Appx. at 756.
because the prisoner had previously sought habeas relief, the
§ 1983 action, “if construed as a petition for
habeas relief, would be a second or successive
petition.” 470 Fed.Appx. at 756. Thus, because Wells
had not obtained an order authorizing a successive action,
the Eleventh Circuit concluded that the “district court
correctly determined that it was without jurisdiction to
consider Wells's complaint.” Id.
as in Wells v. Attorney Gen., Plaintiff has
“challenged the constitutionality of the state statutes
under which he was convicted and sentenced.” 470
Fed.Appx. at 755. Plaintiff does not face future injury from
this statute but, rather, his harm is from its past
operation. McGee v. Solicitor Gen. of Richmond Cty.,
Ga., 727 F.3d 1322, 1325 (11th Cir. 2013) (dismissing
complaint for lack of standing because plaintiff did not
demonstrate a sufficient likelihood of again being convicted
in state court and being placed on probation); Keen v.
Judicial Alternatives of Georgia, Inc., 637 Fed.Appx.
546, 548 (11th Cir. 2015) (affirming dismissal of putative
class action seeking a declaratory judgment because plaintiff
did not demonstrate “that he faced an actual, imminent
injury that would confer standing to challenge the state
statute.”). “Declaratory relief is by its nature
prospective.” McGee, 727 F.3d at 1325.
Judicial notice is taken that Plaintiff is currently serving
a life sentence and he does not show any likelihood of future
injury. Plaintiff lacks standing to seek a declaratory
this civil rights case cannot challenge either § 918.10
or Rule 3.390(a) as it was applied during Plaintiff's
criminal trial because that is a habeas claim. Moreover, this
case cannot be converted into a habeas petition because
Plaintiff has previously, and unsuccessfully, sought habeas
relief in a federal district court some seven years ago.
Judicial notice is taken that Plaintiff's § 2254
petition was dismissed as time barred on January 11,
2011. Plaintiff has not shown that he has
obtained an order from the Eleventh Circuit Court of Appeals