United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
TERRY
F. MOORER UNITED STATES DISTRICT JUDGE
On
September 20, 2019, the pro se plaintiff, Jessie
Riggs (“Riggs” or “Plaintiff”), filed
a Motion to Amend 28 USCS § 2254 Writ of Habeas
Corpus Pursuant to the Federal Rules of Civil Procedure
(“first motion to amend”) in response to the
Court's prior order (Doc. 14, filed September 14, 2019)
to amend his complaint to cure various deficiencies.
See Doc. 15. On December 21, 2018, the Magistrate
Judge entered a Report and Recommendation
(“R&R”) which recommends that the Court deny
Plaintiff's motion. See Doc. 18. Plaintiff
timely objected to the Magistrate Judge's R&R on
January 3, 2019. See Doc. 19. Subsequent to filing
his objections, Plaintiff filed a Motion to Amend
(Doc. 21, filed 2/19/19) (“new motion”). For the
reasons articulated below, the Court adopts the Magistrate
Judge's R&R, overrules the objections filed by
Plaintiff, denies Plaintiff's first motion to amend, and
grants Plaintiff's new motion to the extent articulated
below.
I.
Standards of Review
Under
28 U.S.C. § 636(b)(1)(B), this court reviews de
novo the portions of a magistrate judge's report to
which objections are made.
Pleadings
by pro se litigants “are held to a less
stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” Evans v.
Ga. Reg'l Hosp., 850 F.3d 1248, 1253 (11th Cir.
2017). Nevertheless, all litigants, pro se or not,
must comply with the Federal Rules of Civil Procedure.
Although the Court is required to liberally construe a
pro se litigant's pleadings, “this
leniency does not give a court license to serve as de
facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.”
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014). (internal quotations and citation omitted);
see also Giles v. Wal-Mart Distrib. Ctr., 359
Fed.Appx. 91, 93 (11th Cir. 2009) (“Although pro
se pleadings are held to a less strict standard than
pleadings filed by lawyers and thus are construed liberally,
this liberal construction does not give a court license to
serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an
action.”) (internal citations and quotation omitted).
“When
a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance
to amend the complaint before the district court dismisses
the action with prejudice.” Evans, 850 F.3d.
at 1254 (quoting Bryant v. Dupree, 252 F.3d 1161,
1163 (11th Cir. 2001) (emphasis added) (internal quotations
omitted)). However, “a district court need not allow
amendment when it would be futile.” Id.
(citing Cockrell v. Sparks, 510 F.3d 1307, 1310
(11th Cir. 2007)). Leave to amend is futile when the amended
complaint still would be immediately subject to summary
judgment for the defendant. Id. In determining
futility, courts should err on the side of generosity to the
pro se plaintiff. Carter v. HSBC Mortg. Servs.,
Inc., 622 Fed.Appx. 783, 786 (11th Cir. 2015) (citing
O'Halloran v. First Union Nat'l Bank of
Fla., 350 F.3d 1197, 1206 (11th Cir. 2003)).
II.
Objections to the Report and Recommendation
In his
objections, Plaintiff appears to ask the Court to dismiss
without prejudice his claims brought “improperly”
under 42 U.S.C. § 1983, and to stay any decision on the
R&R (Doc. 18) and the underlying first motion to amend
(Doc. 15) in order to “give this Petitioner a chance to
properly comply” with the Court's order to
amend his complaint (Doc. 14). Doc. 19 at 1. Plaintiff
asserts that he is “unlearned in the proper use of
habeas procedure” and had attempted to proceed in this
action under both 42 U.S.C. § 1983 and 28 U.S.C. §
2254 based on his lack of understanding and misguided advice
from fellow inmates. Id. at 2.
Plaintiff
concedes the Magistrate Judge's finding that Plaintiff
“did not include in his complaint's request for
relief his release from confinement or the invalidation of
his conviction, sentence, or restraint causing his
incarceration.” Id.; see also Doc. 18
at 2. However, he asserts that such relief is the sole
purpose of filing a claim under § 2254, and he was
instructed by fellow inmates to “just tell [his] story
and the court [will] free you.” Doc. 19 at 2. He also
appears to assert, presumably in response to the Magistrate
Judge's statement that the complaint was not submitted on
a court-provided form, that the prison law library lacked the
appropriate forms for his action. Id.; also
see Doc.18 at 2. Plaintiff requests that, in lieu of
adopting the R&R and dismissing this case, the Court
consider “a dismissal without prejudice, or leave to
file a successive petition, or other relief the Court has the
power to grant” in order to allow him to properly cure
the deficiencies “in a proper habeas corpus
manner.” Doc. 19 at 2-3. He asserts that he has
received advice from an unnamed “organization”
that nevertheless lacks the resources to fully assist him,
and that he wishes to litigate in this Court habeas corpus
claims that were presented and inadequately resolved in state
court. Id. at 3.
III.
Motion to Amend (Doc. 21)
In his
newest and motion recent motion, Plaintiff again seeks to
amend his original complaint in order to comply with the
Court's prior orders, asserting that he failed to
understand the difference between habeas corpus and §
1983 procedures. Doc. 21. Plaintiff also requests that the
Court remove Judge Ben H. Brooks as a defendant in this case
and add as a defendant the State of Alabama. Id. at
2. In an accompanying memorandum, In Support of Habeas
Corpus, Plaintiff asserts that he intended to file a
habeas action, not a § 1983 complaint, and asserts
various claims he seeks to bring, including ineffective
assistance of counsel; that his sentence is excessive and
thereby unconstitutional; that Alabama's Habitual Felony
Offender Act is discriminatory and unconstitutional; and
actual innocence. Doc. 22.
IV.
Discussion
As an
initial matter, Plaintiff's objections do not take issue
with any of the Magistrate Judge's findings or legal
conclusions, only with the recommended result. Indeed,
Plaintiff's “objections” to the R&R
concede the Magistrate Judge's findings and merely
attempt to explain their cause. Based on those explanations,
Plaintiff urges the Court to give him another opportunity to
properly amend his complaint and keep his case alive.
However, contrary to what appears to be Plaintiff's
underlying assumption, denying Plaintiff's first motion
to amend, as recommended, does not necessitate dismissal of
his case entirely. Thus, giving due and proper consideration
to all portions of the file deemed relevant to the issues and
having conducted a de novo review of the R&R,
the Court OVERRULES Plaintiff's
objections and ADOPTS the Magistrate
Judge's R&R as the opinion of the Court. Accordingly,
the Court DENIES Plaintiff's first
motion to amend (Doc. 15).
As to
Plaintiff's new motion seeking to amend his pleadings, he
states that he wishes to proceed in this action under §
2254 and cites various claims he wishes to bring in a habeas
petition. However, it also appears that Plaintiff wishes to
preserve his initial §1983 claims, presumably to
re-raise them in some future action, as he requests that the
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