United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
se Plaintiff has filed her second amended complaint. ECF No.
28. The second amended complaint [hereinafter
“complaint”] has now been reviewed as required by
28 U.S.C. § 1915A. Review reveals that Plaintiff has not
corrected the deficiencies which were explained to her in the
Order entered on August 28, 2018. ECF No. 18.
Plaintiff was advised that she could not challenge the
legality of her conviction in this civil rights case. ECF No.
18 at 4. The Order explained that a challenge to one's
conviction may only be brought through the filing of a habeas
petition, not a civil rights action. Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129
L.Ed.2d 383 (1994), held that a claim for damages that is
related to a sentence or conviction that has not yet been
reversed or invalidated is not cognizable under 42 U.S.C.
§ 1983. Id. Notwithstanding, Plaintiff has
continued to assert that she was “wrongfully
convicted” and as relief, she appears to request that
her 3.850/3.800 motions be filed. ECF No. 28 at 9. The
attachments Plaintiff submitted with her complaint
demonstrate that Plaintiff has not yet had her conviction
reversed or otherwise invalidated. Because this civil rights
case cannot provide that relief, nor can it be used to
challenge any of Plaintiff's convictions, the complaint
is insufficient as a matter of law.
Plaintiff has attempted to assert a claim for abuse by jail
officials. However, her complaint reveals that the alleged
abuse occurred in 2007. ECF No. 28 at 7, 8. Such events may
not be litigated in this case as a federal § 1983 claim
must be commenced “within four years of the allegedly
unconstitutional or otherwise illegal act.” Burton
v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.
1999) (citing Baker v. Gulf & Western Indus.,
Inc., 850 F.2d 1480, 1483 (11th Cir. 1988)). Because
Plaintiff's treatment by jail officials occurred more
than fours years prior to the commencement of this case,
those claims are barred and cannot proceed in this case.
general, Plaintiff's complaint includes a litany of
grievances against persons for not investigating her
complaints or responding to her correspondence. ECF No. 28 at
7. Those allegations are insufficient to demonstrate the
violation of a federal constitutional right. Furthermore,
Plaintiff's claim that her 3.850 and 3.800 motions were
never filed by the Liberty County Clerk of Court cannot
proceed because Plaintiff has not alleged facts which
identify any specific person who denied her access to court.
Additionally, as noted above, Plaintiff cannot use this civil
rights action as a basis to challenge “an excessive
sentence” or “wrongful convictions that stemmed
from a report falsified by corrupt law enforcement.”
Id. at 8.
assertions in this case are vague, conclusory, and
unsupported by specific facts. This is a
“shotgun” pleading which does not comply with
Rule 8(a)(2) of the Federal Rules of Civil Procedure. That
rule requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule
8(a)(2)'s purpose is to ‘give the defendant fair
notice of what the claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007) (quotation marks
and alterations omitted) (quoted in LaCroix v. W. Dist.
of Kentucky, 627 Fed.Appx. 816, 818 (11th Cir. 2015),
cert. dismissed sub nom. LaCroix v. U.S. Dist. Court for
W. Dist. of Kentucky, 136 S.Ct. 996, 194 L.Ed.2d 2
(2016)). “Further, the allegations in the complaint
‘must be simple, concise, and direct,' Fed.R.Civ.P.
8(d)(a), and the complaint must ‘state its claims . . .
in numbered paragraphs, each limited as far as practicable to
a single set of circumstances,' Fed.R.Civ.P.
10(b).” 627 Fed.Appx. at 818. “A ‘shotgun
pleading' - one in which ‘it is virtually
impossible to know which allegations of fact are intended to
support which claim(s) for relief' - does not comply with
the standards of Rules 8(a) and 10(b).” Id.
(quoting Anderson v. Dist. Bd. of Trs. of Ctr. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
Plaintiff's complaint is a shotgun pleading and is
has already been given numerous opportunities to submit a
viable complaint, see ECF Nos. 14, 18, 20, 24, and
27, and she was informed of the claims which cannot be
litigated in this case. Despite that guidance, Plaintiff has
continued to pursue claims which are time barred and barred
by Heck. Because further opportunities to submit an
amended complaint do not appear beneficial, it is recommended
that this case be dismissed for failure to state a claim upon
which relief may be granted.
additional reason supporting the recommendation to dismiss
this case, Plaintiff has not honestly disclosed her prior
litigation history. This case was initiated in February 2018,
ECF Nos. 1-2, and transferred to this Court from the Middle
District of Florida. Plaintiff was not granted in forma
pauperis status until June 2018. ECF No. 15. Her initial
complaint suggested that she had filed just two prior federal
cases, although she did not clearly identify those cases. ECF
No. 1 at 3-4. Plaintiff also declared that she had not had
any case dismissed as frivolous, malicious, failing to state
a claim, or prior to service. ECF No. 1 at 3-4. That was not
notice is taken that Plaintiff initiated case number
5:15cv568-WTH-PRL in the Middle District of Florida. It was
dismissed in July 2016 for failure to prosecute and to comply
with court orders. ECF No. 33 of that case. It appears that
Plaintiff has filed an appeal in that case which is still
pending. Because that case was dismissed prior to this case
being filed, it should have been disclosed. Similarly,
Plaintiff initiated case number 5:16cv689-WTH-PRL in the
Middle District of Florida. It was also dismissed sua sponte
because Plaintiff did not submit an in forma pauperis motion
or pay the filing fee. ECF No. 3 of that case. Her appeal of
that dismissal was likewise dismissed for failure to
prosecute. Another case was initiated by Plaintiff on
February 14, 2018, and dismissed in late March 2018 because
Plaintiff did not pay the filing fee or submit an in forma
pauperis motion. See case # 5:18cv85-WTH-PRL. All of
those prior cases should have been disclosed in the initial
problematic for Plaintiff, however, is the fact that by the
time she filed her second amended complaint, ECF No. 28, in
this case on April 24, 2019, she had accumulated additional
dismissals which were not disclosed. These are pointed
for Plaintiff's benefit should she continue to file cases
in federal court. First, Plaintiff had been litigating case
number 9:18cv80361-KAM in the Southern District of Florida.
Her case was dismissed for failure to state a claim pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) on July 16, 2018.
Second, Plaintiff previously filed case number
5:18cv83-WTH-PRL in the Middle District of Florida. It was
dismissed on March 20, 2018, for failure to state a claim,
because Defendants were entitled to immunity, and because her
request for relief was barred by Heck. ECF No. 3 of
that case. A third relevant dismissal is from case number
5:17cv246-PGB-PRL which Plaintiff filed in the Middle
District of Florida. It was also recently dismissed for
failure to state a claim on February 14, 2019. ECF No. 86 of
that case. Those three prior dismissals should have been
disclosed by Plaintiff in her second amended complaint.
of Plaintiff's litigation history reveals that she has
already had cases dismissed for abuse of the judicial process
by failing to acknowledge her prior cases. See ECF
No. 6 of case # 1:18cv24940-JEM; case # 5:18cv239-WTH-PRL.
She has also been made aware that she has more than three
“strikes” under 28 U.S.C. § 1915(g) and is
no longer entitled to proceed with in forma pauperis status
except where Plaintiff faces imminent danger of serious
physical injury. Id. Having already been advised of
her obligation to disclose these cases, Plaintiff's lack
of candor cannot be permitted to continue. Even if
Plaintiff's second amended complaint sufficiently state a
claim, and it does not, this case should be dismissed as an
abuse of the judicial process.
light of the foregoing, it is respectfully
RECOMMENDED that Plaintiff's second
amended complaint, ECF No. 28, be DISMISSED
for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2), and that 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. § 1915(e)(2)(B)(ii). IN
CHAMBERS at Tallahassee, Florida, on May 29, 2019.
TO THE PARTIES
fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file
specific written objections to these proposed findings and
recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the
objections shall be served upon all other parties. A party
may respond to another party's objections within fourteen
(14) days after being served with a copy thereof.
Fed.R.Civ.P. 72(b)(2). Any different deadline that may
appear on the electronic docket is for the Court's
internal use only and does not control. If a party fails
to object to the Magistrate Judge's findings or
recommendations as to any particular claim or issue contained
in this Report and Recommendation, ...