Riggs v. Brooks

          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 ...