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Harris v. Purvis

United States District Court, S.D. Georgia, Savannah Division

May 27, 2015

JOSHUA J. HARRIS, Plaintiff,
v.
LAUREN PURVIS, Assistant District Attorney; and JASON JONES, Public Defender, Defendants.

REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

In this 42 U.S.C. § 1983 case, plaintiff Joshua J. Harris complains of defects in ongoing state court criminal proceedings against him. Doc. 1 at 5 (alleging that his right to a preliminary hearing was waived by his attorney without his knowledge and consent; also, he was indicted "on false grounds."). He seeks unspecified damages and prays for the dismissal of the state criminal case against him. Id. at 6.[1]

To the extent Harris seeks immediate release from confinement, he is in substance bringing a 28 U.S.C. § 2241 habeas corpus action, not a § 1983 claim, for "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement... even, though such a claim may come within the literal terms of § 1983." Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475) 488-90 (1973)).[2] Still, Heck's bar to civil suits that necessarily imply the invalidity of incarceration only applies when there is an "extant conviction" and not merely an "anticipated future conviction, " Wallace v. Kato, 549 U.S. 384, 393 (2007) (emphasis removed). Nevertheless, a district court can "stay [a] civil action [like this] until [Harris'] criminal case... is ended." Wallace, 549 U.S. at 393-94.

No stay is warranted here because Harris sues only the prosecutor and defense lawyer in his state criminal proceedings, and they are immune from suit. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."); Pearson v. Myles, 189 F.Appx. 865, 866 (11th Cir. 2006) ("[B]ecause [appointed counsel] was performing traditional lawyer functions in her representation of [plaintiff/defendant], she was not acting under color of state law. Therefore, [plaintiff/defendant] has no § 1983 cause of action against [appointed counsel] in connection with her representation of him."); Imbler v. Pachtman, 424 U.S. 409, 409 (1976) ("The common-law absolute immunity of judges for acts committed within their judicial jurisdiction... was found to be preserved under section 1983....") (citations omitted). Hence, he fails to state a § 1983 claim in any event.[3]

Accordingly, plaintiff's Complaint must be DISMISSED WITH PREJUDICE. Given the facts pled and applicable law, an "amendment would be futile. This is not a circumstance where a carefully drafted complaint could state a claim for relief under § 1983." Lee v. Alachua Cnty., Fla., 461 F.Appx. 859, 860 (11th Cir. 2012); see also Simmons v. Edmondson, 225 F.Appx. 787, 788-89 (11th Cir. 2007) (district court did not err in dismissing complaint with prejudice without first giving plaintiff leave to amend because no amendment could have overcome the defendants' immunity).

Meanwhile, Harris must pay his $350 filing fee. His furnished account information shows that he has had a $27.34 average monthly balance in his prison account during the past six months. Doe. 5. He therefore owes a $5.47 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). Plaintiff's 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 Courts $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 be collected by the custodian at his next institution in accordance with the terms of this Order.

SO REPORTED AND RECOMMENDED.


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