United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Plaintiff, an Alabama inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). The Court grants Plaintiff's motion to amend his complaint (doc. 10), and recommends that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii) and §1915A(b)(1).
I. Complaint as Amended (Docs. 1, 10).
Hopkins, a minister and evangelist, was arrested on July 28, 2008 for the murder of his wife after police retrieved her body from a freezer at Hopkins' home. (Doc. 1 at 6, 15). Following a publicized arrest and jury trial, Hopkins was convicted, on April 7, 2010, of the murder of his wife, as well as, second-degree rape, second-degree sodomy, and second-degree sex abuse and incest of his stepdaughter. ( Id. at 6, 15-16). He is currently serving a sentence of life imprisonment plus 51 years. ( Id. at 6).
After unsuccessful appeals challenging his conviction, Hopkins filed this timely federal action claiming his constitutional rights had been violated and his trial and appeals had been prejudiced by defendants, Mobile County District Attorney Ashley Rich,  Mobile County Chief of Police Philip Garrett, Pathologist John Krilokowski, NBC Universal and E! Television Producer Nick Cates, and Jupiter Entertainment Producer Briana Schibel. ( Id. at 5-8). Hopkins claims defendants are liable for slander, defamation, providing false information, and emotional distress by the following acts:
Mobile County District Attorney Ashley Rich, following his arrest, "accused [him] in the media of murdering (killing) [his] wife without investigating the incident and without the autopsy being final" (doc. 1 at 5) and labeled him a "chameleon" following his conviction. ( Id. at 5).
Mobile County Chief of Police Philip Garrett gave a public statement, following Hopkins' arrest, that Hopkins killed his wife prior to obtaining the autopsy results and investigating the death of his wife. ( Id. at 8).
Forensic pathologist John Krilokowski testified at trial that the victim had been murdered, despite being unable to specify a cause of death and without prior review of her medical records. ( Id. at 8).
Nick Cates and Briana Scheibel used Hopkins' name, pictures, and information relating to his murder conviction in documentaries without his consent. ( Id. at 5-6).
Hopkins filed this action pursuant to 42 U.S.C. § 1983 claiming defendants violated his Fifth, Eighth, and Fourteenth Amendment rights; he also alleges federal violations of 42 U.S.C. § 1985, 1986, 18 U.S.C. §§ 241, 242, 1623(a), and U.D.H.R. 3, 5, 7. (Doc. 10 at 1-2). Hopkins seeks monetary relief totaling $650, 000.00 for damages. ( Id. ).
II. Standards of Review Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Docs. 1, 10) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "plain statement' possess[ing] enough heft to sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Furthermore, when a successful affirmative defense, such as a statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007).
When considering a pro se litigant's allegations, a court holds them to a more lenient standard than those of an attorney, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), but the court does not have "license... to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (relying on Iqbal, 556 U.S. 662). The factual allegations are treated as true by the court, but conclusory assertions or a recitation of a cause of action's elements are not. Iqbal, 566 U.S. at 681. In addition, a pro se litigant "is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).
A. Section 1983 ...