United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
The Court recommends dismissal of this 42 U.S.C. § 1983 case because plaintiff Thomas Bloodworth complains of a defect in the state court criminal proceedings against him (that assistant public defenders waived his preliminary hearing rights) yet seeks no damages, only dismissal of that case. Doe. 1 at 6. In so doing, Bloodworth invalidates his § 1983 claim. Wilkinson v. Dotson, 544 U.S. 742 78 (2005) ("a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement.... He must seek federal habeas corpus relief (or appropriate state relief) instead.") (quotes and cites omitted). Accordingly, plaintiffs case should be DISMISSED.
Meanwhile, Bloodworth must pay his $350 filing fee. His furnished account information shows that he has had a $40.00 average monthly balance in his prison account during the past six months. Doe. 5. He therefore owes an $8.00 initial partial filing fee. See 28 U.S.C. § 1915(b) (1) (requiring an initial fee assessment "when funds exist, " under a specific 20 percent formula). Plaintiffs custodian (or designee) therefore shall set aside 20 percent of all future deposits to the account, then forward those funds to the Clerk each time the set aside amount reaches $10.00, until the balance of the Court's $350.00 filing fee has been paid in full.
Also, the Clerk is DIRECTED to send this Order to plaintiffs account custodian immediately. In the event plaintiff is transferred to another institution, his present custodian shall forward a copy of this Order and all financial information concerning payment of the filing fee and costs in this case to plaintiffs new custodian. The balance due from the plaintiff shall ...