United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
se plaintiff Perry Hatcher, serving a life sentence for
murder at Washington State Prison, alleges in his 42 U.S.C.
§ 1983 Complaint that the prosecutors and his public
defender committed myriad wrongdoings in his state criminal
case. Doc. 1 at 5-6 (discussing Liberty County Superior Court
case “2016RIS”). The Court granted Hatcher's
request to pursue his case in forma pauperis (IFP),
doc. 3, and he returned the necessary forms. Docs. 4 & 5.
The Court now screens the Complaint pursuant to 28 U.S.C.
alleges that Liberty County District Attorneys Tom Durden and
“John/Jane Doe” and public defenders John Ely and
Luke Moses conspired together to put him behind bars. Doc. 1
at 5-7, 9-17. He contends, among other things, that there
were problems with the grand jury and that a constitutionally
invalid indictment was lodged against him. Id. at
10. He seeks $1, 000 in compensatory damages for “each
day” he “suffered such violent charges on record,
” $100 in compensatory damages “per day for each
day for the rest of [his] life, ” $10 million in
punitive damages, and fees and costs associated with bringing
suit against defendants. Id. at 19.
construed, plaintiff's Complaint alleges malicious
prosecution. See Wallace v. Kato, 549 U.S. 384, 390
(2007) (the tort of malicious prosecution “remedies
detention accompanied . . . by wrongful institution
of legal process.”). The Eleventh Circuit “has
identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under
§ 1983.” Wood v. Kessler, 323 F.3d 872,
881 (11th Cir. 2003). But an essential element of a malicious
prosecution claim is the termination of the criminal
prosecution in the plaintiff's favor. Id. at
882. And there is no allegation that the Liberty County
criminal case has been resolved in his favor. See
doc. 1. Indeed, it appears to have been crystalized into a
conviction that he is currently serving. See
September 4, 2018. Hatcher therefore cannot pursue a
malicious prosecution claim against any defendant until that
conviction is overturned.
to the extent he waves at other claims (see doc. 1
at 9-17 (listing “defamation, ” malpractice, and
“due process” violations), prosecutors are
entitled to absolute immunity from damages for their acts or
omissions taken in the course of initiating a prosecution.
Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.
2000); see also Imbler v. Pachtman, 424 U.S. 409,
409 (1976) (“[I]n initiating a prosecution and in
presenting the State's case, the prosecutor is immune
from a civil suit for damages under § 1983.”);
Jackson v. Capraun, 534 Fed.Appx. 854, 859 (11th
Cir. 2013) (prosecutor entitled to absolute immunity for
initiating prosecution even if he did so with
malicious intent). And public defenders do not qualify as
state actors for purposes of § 1983 liability. Polk
County 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 Fed.Appx. 865, 866 (11th Cir. July 5, 2006)
(court-appointed defense counsel did not act under color of
state law and thus was not subject to liability under §
1983). In other words, plaintiff has no § 1983 cause of
action against the prosecutors or public defenders involved
with his state criminal case. His §1983 Complaint should
it is time for Hatcher to pay his filing fee. His PLRA
paperwork reflects $116.50 in average monthly deposits. Doc.
4. He therefore owes a $23.30 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) shall remit the $23.30 and shall set aside 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 filing
fee has been paid in full.
Clerk is DIRECTED to send this Order and
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 Order and 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 this Order and
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).
ORDERED AND REPORTED AND RECOMMENDED.
 Where the plaintiff is proceeding IFP,
the Court is required to screen the case and dismiss it at
any time the Court determines either that the allegation of
poverty is untrue or that the action or appeal is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
 Indeed, Hatcher complains of defects
that necessarily imply his conviction's invalidity. In
that case, § 1983 affords him no remedy: “[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.” Wilkinson v. Dotson, 544
U.S. 74, 78 (2005) (quotes and cites omitted); Heck v.
Humphrey, 512 U.S. 477, 481 (1994) (“[H]abeas
corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks
immediate or speedier release, even though such a claim may
come within the literal terms of § 1983.”). And
before he can bring a federal habeas action, he must first
exhaust his available state remedies through either a direct
appeal or another petition for state collateral relief.
Wilkinson, 544 U.S. at 79 (federal “habeas
corpus actions require a petitioner fully to exhaust state
remedies, which § 1983 does not”); 28 U.S.C.
§§ 2254(b), (c).
 To the extent plaintiff believes he
can resuscitate these claims, he remains free to submit an
Amended Complaint if he believes that it would cure the legal
and factual defects discussed above. See Willis v.
Darden, 2012 WL ...