United States District Court, S.D. Georgia, Savannah Division
KELVIN J. FIELDS, Plaintiff,
DISTRICT ATTORNEY MEG HEAP, et al. Defendants.
REPORT AND RECOMMENDATION
se plaintiff Kelvin Fields objects to the
undersigned's Report and Recommendation (R&R)
recommending that his case be dismissed without prejudice.
Doc. 8. He challenges the Court's interpretation that his
original Complaint failed to allege that his pending
state-court criminal case had terminated in his favor,
fatally undermining a § 1983 malicious prosecution
claim. Doc. 8 (objecting to R&R because criminal case
“was resolved in [his] favor”). Since his
objection asserts an additional allegation affecting the
Court's analysis, the Court VACATES its
original R&R (doc. 6) to the extent that it relied on
Fields' failure to allege favorable termination of his
Fields' objection emphasizes his request that this Court
intervene in his on-going state prosecution. See
doc. 8 at 2, 3 (referring to “accusation #
AR16090362” as “pending” and alleging that
it “violates plaintiff['s] Constitutional right
to protection from being held/imprisoned without presentment
or indictment by a grand jury, ” and seeking to
challenge “the unlawfulness of his detainment.”).
As the previous R&R explained, important principles of
comity (the respect that the federal courts owe to state
courts) require this Court to abstain from
interfering in ongoing state criminal prosecutions. Doc. 6 at
3. Although courts have recognized some exceptions to that
abstention principle, they are rarely applicable.
See Charles Alan Wright & Arthur R. Miller,
et al. 17B Fed. Prac. & Proc. § 4255 (3d
ed. 2017) (“Although later Supreme Court decisions have
not shed a great deal of additional light on the exceptions
to Younger, what the Court has done confirms that the Court
is right when it describes them as ‘these narrow
exceptions.'” (cite omitted)). Nothing in any of
Fields' filings even suggests a sufficient ground for
this Court to interfere in his pending prosecution.
his request for intercession is dead on arrival, his
allegation that some proceeding has terminated in
his favor might revive his malicious prosecution
claim. If his additional allegations affect the viability of
such a claim, however, it could only be leveled against
defendant Heap. And as the Court explained in a footnote
to its R&R, she is entitled to absolute prosecutorial
immunity against any such claim. See doc. 6 at 3 n.
2. A prosecutor's absolute immunity extends to all
“allegations stemming from the prosecutor's
function as advocate, ” Hart v. Hodges, 587
F.3d 1288, 1295 (11th Cir. 2009); even as far as
“‘filing an information without investigation,
filing charges without jurisdiction, filing a baseless
detainer, offering perjured testimony, suppressing
exculpatory evidence, refusing to investigate . . .
complaints about the prison system, [and] threatening . . .
further criminal prosecutions . . . .'”
Id. (quoting Henzel v. Gerstein, 608 F.2d
654, 657 (5th Cir. 1979)). Since Fields' allegations make
it clear that Heap acted (and is acting) exclusively as a
government advocate, she has absolute immunity against his
claims and they should be DISMISSED. See
Smith v. Shorstein, 217 Fed.Appx. 877, 880 (11th Cir.
2007) (affirming sua sponte dismissal of complaint,
at screening, based on absolute prosecutorial immunity).
claims against the remaining defendants are also subject to
dismissal. Claims against defendants Hilliard and Cail, his
defense attorneys, are not cognizable under § 1983.
See Polk v. Dodson, 454 U.S. 312, 317-19 (1981)
(defense attorney does not act under “color of state
law” within the meaning of § 1983, even when
appointed by the state). Fields' only allegation
mentioning Sheriff Wilcher is that he “brought [a]
grievance to the attention of . . . Chatham County Sheriff
Mr. John T. Wilcher” concerning his grand-jury waiver
dispute. See doc. 1 at 5. That's not enough to
state any claim against him, notwithstanding his recent
favorable-termination allegations. See Baker v.
Rexroad, 159 Fed.Appx. 61, 62 (11th Cir. 2005) (where
the inmate had no constitutionally protected interest in
grievance procedure, officials' failure to take
corrective action could not support a § 1983 claim).
Accordingly, the claims against defendants Hilliard, Cail,
and Wilcher should be DISMISSED.
remains responsible for his filing fee. Since his PLRA
paperwork reflects an average monthly balance of $0.00, he
does not owe any initial partial filing fee. See 28
U.S.C. § 1915(b)(1) (requiring an initial fee assessment
“when funds exist”). Plaintiff's custodian
(or designee) shall therefore set aside and remit 20 percent
of all future deposits to his 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.
the Clerk is DIRECTED to send this Report
and Recommendation (R&R) to plaintiff's account
custodian immediately, as this payment directive is
nondispositive within the meaning of Fed.R.Civ.P. 72(a), so
no Rule 72(b) adoption is required. In the event he is
transferred to another institution, his present custodian
shall forward a copy of this R&R and all financial
information concerning payment of the filing fee and costs in
this case to plaintiff's new custodian. The balance due
from plaintiff shall be collected by the custodian at his
next institution in accordance with the terms of the payment
directive portion of the R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report
and Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 As the Supreme Court has explained,
“comity” refers to “a proper respect for
state functions, a recognition of the fact that the entire
country is made up of a Union of separate state governments,
and a continuance of the belief that the National Government
will fare best if the States and their institutions are left
free to perform their separate ...