Landaverde v. Banks

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After careful review, it is recommended that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), prior to service of process, for failure to state a claim upon which relief can be granted.

         I. Complaint. (Doc. 1).

         The complaint before the Court was extracted from the Court's file in Landaverde v. Jefferson Davis Community College, CA No. 18-0295-TFM-N (S.D. Ala. Mar. 11, 2019) (“Landaverde I”), because its allegations bore no relation to the allegations in Landaverde I. (Doc. 2; see Landaverde I, Doc. 17). The present complaint was filed in Landaverde I as an amended complaint on January 23, 2019. (Doc. 16).

         According to the complaint's allegations (Doc. 1), on February 20, 2015, Plaintiff received a write-up for an institutional rule violation of escape without force. (Doc. 1 at 4). Then, on February 24, 2015, at Fountain Correctional Center (“Fountain”), Captain Knight found him not guilty of the charge. (Id.).

         Discovering that Plaintiff was found not guilty on the institutional escape charge, the sole Defendant, Captain Lanetta Banks, who was at Loxley Work Release, obtained a felony warrant for first-degree escape against Plaintiff, which Captain Knight served on him on March 6, 2015. (Id. at 4-5). When Defendant Banks learned Plaintiff was found not guilty on the felony escape charge, she obtained another felony warrant for first-degree escape against him, which Captain Knight served on him on April 4, 2016. (Id. at 5). And, on September 20, 2016, he was found not guilty on the second escape charge by Judge Scott P. Taylor. (Id.).

         Plaintiff contends that Defendant Banks acquired felony warrants charging him twice for the same crime and both times he was found not guilty. (Id.). He maintains that Defendant Banks has destroyed him mentally and damaged his character, which resulted in him losing his finger at the cabinetmaking trade shop at Fountain because he was not able to stay focused on his task. (Id.). For relief, Plaintiff seeks $2 million from Defendant Banks.

         II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

         Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) 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). In addition, 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, 129 S.Ct. at 1949. 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 and gives them a liberal construction. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But it does not have “license . . . to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Inv., Inc. v. Cty. of Escambia, Fla. , 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 566 U.S. 662. The court treats factual allegations as true, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 556 U.S. at 681, 129 S.Ct. at 1951. 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).

         III. Discussion.

         To be sure, Plaintiff's description of his claims against Defendant Banks is brief. The best that the Court can discern is Defendant Banks obtained two criminal felony warrants against Plaintiff for first-degree escape. (Doc. 1 at 4-5). The first warrant was served on Plaintiff on March 6, 2015, and the second warrant was served on him on April 4, 2016, after Defendant Banks discovered Plaintiff was found not guilty on the first felony warrant. Plaintiff was then found not guilty on the second felony warrant on September 20, 2016. (Id. at 5). Plaintiff complains that he was “charged . . . twice for the same crime.“ (Id.).

         Aside from the criminal proceedings, Plaintiff was also charged with an institutional rule violation for escape without force. (Id. at 4). He was found not guilty in a hearing on the rule violation (i.e., a disciplinary charge). (Id.). Defendant Banks is not connected to the disciplinary proceeding in Plaintiff's allegations. Therefore, a § 1983 claim has not been stated against her based on the disciplinary allegations. Zatler v. Wainwright,802 F.2d 397, 401 (11th Cir. 1986) (finding a § 1983 plaintiff must establish a causal connection ...