United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Dennis Akins, who is proceeding in forma pauperis ("IFP"), has filed a 42 U.S.C. § 1983 complaint seeking release from incarceration because his public defender waived his right to a preliminary hearing without his consent. (Doc. 1 at 5.) His complaint should be dismissed.
To the extent Akins seeks to interrupt an ongoing state prosecution, the Court will abstain from considering it. Jackson v. Georgia, 273 F.Appx. 812, 813 (11th Cir. 2008) ("Attentive to the principles of equity, comity, and federalism, the Supreme Court has recognized that federal courts should abstain from exercising jurisdiction in suits aimed at restraining pending state criminal prosecutions.") (citing Younger v. Harris, 401 U.S. 37 (1971)). A federal court may not enjoin the state court criminal proceeding unless: (1) there is a "great and immediate" danger of irreparable harm to be suffered as a result of the prosecution; (2) the state law is flagrantly and patently violative of the federal constitution; (3) there is a showing of bad faith or harassment; or (4) other unusual circumstances call for equitable relief. Mitchum v. Foster, 407 U.S. 225, 230 (1972) (citing Younger, 401 U.S. at 46-54); Cole v. State of Florida, 2010 WL 2711861 at * 3 n. 4 (N.D. Fla. Jun. 3, 2010). Akins has not offered any facts rising to the level of a Younger exception. He should seek relief before the state courts, not here.
Additionally, plaintiff may not pursue the habeas remedy of release from confinement in a combined civil rights and habeas complaint. See Hudson v. Hubbard, 358 F.Appx. 116, 119 (11th Cir. 2009) (citing Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003)); see also Wilkinson v. Dotson, 544 U.S. 74, 77 (2005) ("[A] prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement.") (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)); Wolff v. McDonnell, 418 U.S. 539, 553-55 (1974) (delineating distinctions between using § 1983 to pursue damages, and habeas corpus for claims challenging the legality of confinement).
And even were the Court to construe Akins's complaint as a habeas petition, it still fails because he has not alleged that he exhausted his state court remedies, which is a precondition to such actions. 28 U.S.C. § 2254(b) (codifying common law exhaustion requirement); Wilkinson, 544 U.S. at 79 (all habeas corpus actions "require a petitioner to fully exhaust state remedies"); see also Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004) (Tjoflat, J., concurring) ("Among the most fundamental common law requirements of § 2241 is that petitioners must first exhaust their state court remedies."). Nor has plaintiff substantially followed the Court's § 2254 form petition, as required by Rule 2(d) of the Rules Governing Section 2254 Cases. If he wishes to proceed via habeas corpus, he must submit a separate petition in compliance with the applicable rules.
Since the Court cannot grant the relief he requests, plaintiffs complaint should be DISMISSED. Meanwhile, Akins is statutorily required to pay the filing fee for this lawsuit. Based upon his furnished information, he owes no 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 account custodian, however, shall set aside 20 percent of all future deposits to the account and forward those funds to the Clerk each time the set aside amount reaches $10, until the balance of the Court's $350 filing fee has been paid in full. In the event plaintiff is transferred to another institution, plaintiff's 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 be collected by the custodian at his next institution in accordance with the terms of this Order.
A copy of this Order and a copy of the Consent to Collection of Fees from Trust Account shall be served upon plaintiff and his current custodian. The payment portion of this Order is to be implemented immediately, as it is ...