United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
se plaintiff Ronnie Nicholson alleges in his 42 U.S.C.
§ 1983 Complaint that the crime scene investigator,
violent crimes detective, lead detective, and a sergeant in
the internal affairs unit for Chatham County fabricated
evidence for use in the prosecution against him. Doc. 1 at 7
(discussing State v. Nicholson, CR160179 (Chatham
Cty. Super. Ct.)). The Court granted plaintiffs request to
pursue his case in forma pauperis (IFP), doc. 4, and
he returned the necessary forms. Docs. 5 & 6. The Court
now screens the Complaint pursuant to 28 U.S.C. § 1915A,
which requires the immediate dismissal of any pro se
complaint that fails to state at least one actionable claim
against a governmental entity or official.
alleges that various police department and county staff
conspired together to put him behind bars. Doc. 1 at 7-8,
12-14. He seeks $1, 000, 000 in compensatory damages against
defendants, "severally," and $500, 000 in punitive
damages against each defendant individually. Id. at
13. Liberally construed, plaintiffs 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.
Kesler, 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 plaintiffs
favor. Id. at 882. And there is no allegation that
the Chatham County criminal case has been resolved in
Nicholson's favor. See doc. 1. Indeed, it
appears to have crystalized into a conviction that he is
currently serving. See
January 8, 2019. Nicholson, therefore, cannot bring suit
until that conviction is overturned.
Nicholson's §1983 Complaint must be
DISMISSED.Meanwhile, it is time for
plaintiff to pay his filing fee. His PLRA paperwork reflects
$8.33 in average monthly deposits. Doc. 4. He therefore owes
a $1.66 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 custodian (or designee) shall remit the
$1.66 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
Report and Recommendation (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.
 Indeed, Nicholson 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 170163 at * 2 n. 3 (S.D. Ga. Jan. 19,
 The Clerk is DIRECTED to send this
Order to plaintiffs 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 plaintiffs new custodian. The
balance due from plaintiff shall be collected by the