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Nicholson v. Harrel

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

January 9, 2019

RONNIE NICHOLSON, Plaintiff,
v.
ELIZABETH HARREL, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

         Pro 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.

         Nicholson 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 http://www.dcor.state.ga.us/GDC/Offender/Query, accessed January 8, 2019. Nicholson, therefore, cannot bring suit until that conviction is overturned.[1]

         In sum, Nicholson's §1983 Complaint must be DISMISSED.[2]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 full.[3]

         This 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.

         After 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).

         SO ORDERED AND REPORTED AND RECOMMENDED.

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Notes:

[1] 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).

[2] 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, 2012).

[3] 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 ...


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