United States District Court, N.D. Georgia, Atlanta Division
PRISONER CIVIL RIGHTS 42 U.S.C. § 1983
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT AND RECOMMENDATION
F. KING UNITED STATES MACHSTHATE JUDGE.
Curtis Irven Tyner, whose address of record is at Georgia
State Prison in Reidsville, Georgia, has submitted a pro
se civil rights complaint. The Court previously granted
Plaintiff in forma pauperis status, and the matter
is now before the Court on the complaint  for screening
under 28 U.S.C. § 1915A and on Plaintiff's motion to
28 U.S.C. § 1915A Standard
1915A of Title 28 requires the federal court to conduct an
initial screening of a prisoner complaint against a
governmental entity, employee, or official to determine
whether the action: (1) is frivolous or malicious, (2) fails
to state a claim on which relief may be granted, or (3) seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b). A claim is frivolous when
it “lacks an arguable basis either in law or in
fact.” Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011) (quoting Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008)) (internal quotation marks
omitted). To state a claim, a pleading must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief[.]” Fed.R.Civ.P.
reviewing whether a plaintiff has stated a claim, the court
presumes the truth of a plaintiff's non-frivolous factual
allegations, construing them favorably to the plaintiff.
Franklin v. Curry, 738 F.3d 1246, 1248 (11th Cir.
2013); see also Denton v. Hernandez, 504 U.S. 25, 33
(1992) (discussing court's authority to disregard
frivolous factual allegations). Further, the court holds
pro se pleadings to a less stringent standard than
pleadings drafted by lawyers. Bingham, 654 F.3d at
1175. Although courts show leniency to pro se
litigants, “this leniency does not give a court license
to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain
an action.” Campbell v. Air Jamaica Ltd., 760
F.3d 1165, 1168-69 (11th Cir. 2014) (quoting GJR Invs.,
Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998)) (internal quotation marks omitted).
order to state a claim for relief under 42 U.S.C. §
1983, a plaintiff must allege facts plausibly showing that
(1) a person acting under color of state law (2) deprived him
of a right secured by the Constitution or federal law.
Bingham, 654 F.3d at 1175. If a litigant cannot
satisfy these requirements or fails to provide factual
allegations in support of his claim or claims, then the
complaint is subject to dismissal. See 28 U.S.C.
§ 1915A(b) (dictating that a complaint, or any portion
thereof, that does not pass the standard in § 1915A
“shall” be dismissed on preliminary review).
1984, Plaintiff pleaded guilty to the murder of Martha Anne
Mickel and received a life term of imprisonment. See
Tyner v. State, 289 Ga. 592, 592, 714 S.E.2d 577, 578
(2011), overruled on other grounds Lejeune v.
McLaughlin, 296 Ga. 291, 766 S.E.2d 803 (2014). On
belated appeal, Plaintiff's conviction was reversed and
remanded by the Georgia Supreme Court on the grounds that
Plaintiff had not properly been informed of his rights before
pleading guilty. Id., 289 Ga. at 596, 714 S.E.2d at
581. Plaintiff states that he was re-indicted, (Compl. ¶
IV, ECF No. 1), and the online docket for the Fulton County
Superior Court shows that Plaintiff was re-indicted in 2011,
tried before a jury, and on February 8, 2013, was found
guilty of murder. See
(follow “All Case Records” hyperlink, Case Number
11SC104368) (last visited Jan. 6, 2017). After trial,
Petitioner filed a motion for a new trial, as amended, which
remains pending. See id.
brings this action against District Attorney Paul Howard,
Jr., and the Fulton County District Attorney's Office.
(Compl. ¶ III). Plaintiff asserts that Howard and the
District Attorney's Office re-indicted him after his
murder conviction was reversed and remanded by the Georgia
Supreme Court. (Id. ¶ IV); see also
Tyner, 289 Ga. at 596, 714 S.E.2d at 581. Plaintiff
asserts that his constitutional rights were violated when the
state re-indicted him without dismissing the original
indictment, issuing an arrest warrant, or carrying him in
front of a magistrate judge. (Compl. ¶ IV). Plaintiff
seeks a remand to the sentencing court and damages.
(Id. ¶ V).
fails to state a claim against the Fulton County District
Attorney's Office or Howard. As a general rule, an Office
of the District Attorney is not an entity subject to suit.
Zellars v. Clarke Cty. Sheriff's Dep't, No.
3:08CV91(CDL), 2008 WL 5076334, at *1 (M.D. Ga. Nov. 25,
2008) (citing Dean v. Barber, 951 F.2d 1210, 1210
(11th Cir. 1992)); Ward v. Office of Dist. Atty.,
No. 5:07CV233-CAR, 2007 WL 1832014, at *2 (M.D. Ga. June 25,
2007). Further, an individual prosecutor is protected by
absolute immunity from damage claims when performing as an
advocate for the government. Rowe v. City of Ft.
Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002)
(“A prosecutor is entitled to absolute immunity for all
actions he takes while performing his function as an advocate
for the government. . . . The prosecutorial function includes
the initiation and pursuit of criminal prosecution[.]”
(citations omitted)). Additionally, when there are adequate
remedies at law (such as the ability to appeal and/or seek
mandamus relief), a § 1983 plaintiff is not entitled to
equitable relief against prosecutorial officials. Bolin
v. Story, 225 F.3d 1234, 1242-43 (11th Cir. 2000).
Fulton County District Attorney's Office must be
dismissed as it is not an entity subject to suit. Further, it
is apparent that Howard was performing as an advocate for the
State of Georgia, and Plaintiff may not bring a civil action
against a prosecutor who was acting in his governmental role
on behalf of the state government. Accordingly, this action
must be dismissed for failure to state a claim. If Plaintiff
wishes to challenge his re-indictment and subsequent
conviction, he must use the available criminal procedures
such as a motion for a new trial and direct appeal, which he
appears to be doing. Thereafter, Plaintiff may wish to seek
state habeas corpus relief and, after the exhaustion of his
available state remedies, seek federal habeas corpus
also has filed a motion to stay in which he states that he
currently is confined in the Fulton County Jail and will be
unable to respond to any matter that is sent to him at
Georgia State Prison. Plaintiff provides addresses for
Georgia State Prison and for the Fulton County Jail. (Mot. to
Stay, ECF No. 4). On-line Fulton County Jail Records show
that Plaintiff currently is confined in the Fulton County
Jail, booking number 1622853. The Court will direct the Clerk
of Court to forward Plaintiff's mail to Plaintiff at the
Fulton County Jail and Georgia State Prison and finds that a
stay is unnecessary.