UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
CARLA LAVERNE RUSHING, Plaintiff, v. CASE NO. 8:22-cv-2817-SDM-JSS ROCHELLE WILLIAMSON, et al.,
Defendants. / O R D E R Rushing’s complaint alleges that the defendants violated her civil rights on specified days during her detention and criminal prosecution. Rushing neither moved for leave to proceed in forma pauperis nor paid the full $400 filing fee. Nevertheless, under either 28 U.S.C. § 1915(e) (if proceeding in forma pauperis) or 28 U.S.C. § 1915A (if the full filing fee is paid), the Prisoner Litigation Reform Act (“PLRA”) requires a district court both to review the complaint and to dismiss the complaint if frivolous or malicious or for failing to state a claim upon “which relief may be granted.” Although the complaint is entitled to a generous interpretation, Haines v. Kerner, 404 U.S. 519
(1972) (per curiam), this pro se complaint lacks merit under this standard for four reasons. First, Rushing lists a dozen days on which the defendants allegedly violated her rights. Although Section 1983 contains no limitation, the state’s limitation controls. Generally, the state limitation for a personal injury claim applies to a Section 1983 claim. Wilson v. Garcia, 471 U.S. 261, 276–79 (1985). See Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (“Federal courts apply their forum state’s statute of limitations
for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983.”) (per curiam). In Florida, the limitation for a personal injury, and derivatively for a Section 1983 claim, is four years. Fla. Stat. § 95.11(3). Consequently, a claim based on an event that occurred before December 2018, is time-barred.
Second, Rushing can pursue a claim against neither a judge nor a prosecutor nor her defense lawyer. A state court judge is entitled to absolute immunity from suit in a civil rights action for an act that is within the scope of judicial authority. Bradley v. Fisher, 80 U.S. (13 Wall.) 355 (1871); Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980); Jones v. Cannon, 174 F.3d 1271, 1281–82 (11th Cir.
1999). “Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). Prosecutorial immunity precludes Rushing’s recovering either compensatory or punitive damages, each of which Rushing requests. Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under § 1983.”); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999) (“[A]bsolute immunity extends to a prosecutor’s acts undertaken . . . in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State . . . .’”) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). See also Van de Kamp v. Goldstein, 555 U.S. 335, 340–43 (2009), and Hart v. Hodges, 587 F.3d 1288, 1294–96 (11th Cir. 2009), for a thorough review of the breadth of prosecutorial immunity. As a
consequence, Rushing cannot pursue a claim for damages against any of the name prosecutors. Similarly, Rushing’s complaint fails to state a claim against her defense attorney because the complaint must allege facts showing that counsel acted under color of
state law. See generally Dennis v. Sparks, 449 U.S. 24 (1980). The complaint fails to state a claim against the defense attorney because no defense counsel — whether publicly provided or privately retained — acts under color of law. “[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dobson,
454 U.S. 312, 325 (1981). Rushing’s allegations are based on his counsel’s actions while “performing a lawyer’s traditional functions” as described in Dobson. Therefore, Rushing’s defense attorney was not acting under color of state law and is not liable under Section 1983.1 See also Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011)2
1 The Fourteenth Amendment offers no protection against private conduct, no matter how wrongful, outrageous, or discriminatory. Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). “As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (quoting Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 156 (1978).
2 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” CTA11 Rule 36-2. (“State public defenders do not act under color of state law, even when appointed by officers of the courts. Wahl v. McIver, 773 F .2d 1169, 1173 (11th Cir. 1985)). Third, Rushing complains about the county jail’s grievance procedures. A
detainee in a county jail has no due process right to a grievance procedure. “[A] prisoner does not have a constitutionally protected liberty interest in an inmate grievance procedure.” Thomas v. Warner, 237 F. App’x 435, 437 38 (11th Cir. 2007). See also Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005) (holding that a prison
inmate grievance procedure is not constitutionally mandated and that a prison official’s failure to take corrective action upon the prisoner’s filing of a grievance amounts to no violation of due process), and Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“[A] state’s inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause.”). A prison official’s failure to process a
grievance is not actionable under Section 1983. Thomas, 237 F. App’x at 438 (“Plaintiff’s allegations that prison officials failed to comply with the prison’s voluntary grievance procedures does not state a due process claim.”).
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
CARLA LAVERNE RUSHING, Plaintiff, v. CASE NO. 8:22-cv-2817-SDM-JSS ROCHELLE WILLIAMSON, et al.,
Defendants. / O R D E R Rushing’s complaint alleges that the defendants violated her civil rights on specified days during her detention and criminal prosecution. Rushing neither moved for leave to proceed in forma pauperis nor paid the full $400 filing fee. Nevertheless, under either 28 U.S.C. § 1915(e) (if proceeding in forma pauperis) or 28 U.S.C. § 1915A (if the full filing fee is paid), the Prisoner Litigation Reform Act (“PLRA”) requires a district court both to review the complaint and to dismiss the complaint if frivolous or malicious or for failing to state a claim upon “which relief may be granted.” Although the complaint is entitled to a generous interpretation, Haines v. Kerner, 404 U.S. 519
(1972) (per curiam), this pro se complaint lacks merit under this standard for four reasons. First, Rushing lists a dozen days on which the defendants allegedly violated her rights. Although Section 1983 contains no limitation, the state’s limitation controls. Generally, the state limitation for a personal injury claim applies to a Section 1983 claim. Wilson v. Garcia, 471 U.S. 261, 276–79 (1985). See Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (“Federal courts apply their forum state’s statute of limitations
for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983.”) (per curiam). In Florida, the limitation for a personal injury, and derivatively for a Section 1983 claim, is four years. Fla. Stat. § 95.11(3). Consequently, a claim based on an event that occurred before December 2018, is time-barred.
Second, Rushing can pursue a claim against neither a judge nor a prosecutor nor her defense lawyer. A state court judge is entitled to absolute immunity from suit in a civil rights action for an act that is within the scope of judicial authority. Bradley v. Fisher, 80 U.S. (13 Wall.) 355 (1871); Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980); Jones v. Cannon, 174 F.3d 1271, 1281–82 (11th Cir.
1999). “Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). Prosecutorial immunity precludes Rushing’s recovering either compensatory or punitive damages, each of which Rushing requests. Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under § 1983.”); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999) (“[A]bsolute immunity extends to a prosecutor’s acts undertaken . . . in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State . . . .’”) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). See also Van de Kamp v. Goldstein, 555 U.S. 335, 340–43 (2009), and Hart v. Hodges, 587 F.3d 1288, 1294–96 (11th Cir. 2009), for a thorough review of the breadth of prosecutorial immunity. As a
consequence, Rushing cannot pursue a claim for damages against any of the name prosecutors. Similarly, Rushing’s complaint fails to state a claim against her defense attorney because the complaint must allege facts showing that counsel acted under color of
state law. See generally Dennis v. Sparks, 449 U.S. 24 (1980). The complaint fails to state a claim against the defense attorney because no defense counsel — whether publicly provided or privately retained — acts under color of law. “[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dobson,
454 U.S. 312, 325 (1981). Rushing’s allegations are based on his counsel’s actions while “performing a lawyer’s traditional functions” as described in Dobson. Therefore, Rushing’s defense attorney was not acting under color of state law and is not liable under Section 1983.1 See also Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011)2
1 The Fourteenth Amendment offers no protection against private conduct, no matter how wrongful, outrageous, or discriminatory. Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). “As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (quoting Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 156 (1978).
2 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” CTA11 Rule 36-2. (“State public defenders do not act under color of state law, even when appointed by officers of the courts. Wahl v. McIver, 773 F .2d 1169, 1173 (11th Cir. 1985)). Third, Rushing complains about the county jail’s grievance procedures. A
detainee in a county jail has no due process right to a grievance procedure. “[A] prisoner does not have a constitutionally protected liberty interest in an inmate grievance procedure.” Thomas v. Warner, 237 F. App’x 435, 437 38 (11th Cir. 2007). See also Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005) (holding that a prison
inmate grievance procedure is not constitutionally mandated and that a prison official’s failure to take corrective action upon the prisoner’s filing of a grievance amounts to no violation of due process), and Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“[A] state’s inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause.”). A prison official’s failure to process a
grievance is not actionable under Section 1983. Thomas, 237 F. App’x at 438 (“Plaintiff’s allegations that prison officials failed to comply with the prison’s voluntary grievance procedures does not state a due process claim.”). Fourth, the complaint contains no fact attributed to a specific defendant. Rushing appears to rely on respondeat superior to reach some defendants. Rushing
cannot pursue an action under Section 1983 against a person only because that person is the supervisor of someone who allegedly wronged Rushing. The complaint must assert facts showing the direct and active involvement of each defendant in the alleged deprivation of Rushing’s civil rights. Rushing cannot base a Section 1983 claim on respondeat superior. Monell v. N.Y.C. Dep’t of Social Services, 436 U.S. 691, 694 (1978). See also Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007) (“We do not recognize vicarious liability, including respondeat superior, in § 1983 actions.”). The civil rights complaint (Doc. 1) is DISMISSED for failing to state a claim, but the dismissal is WITHOUT PREJUDICE to the filing of an amended complaint no later than FRIDAY, JANUARY 20, 2023. The clerk must send to Rushing both a civil rights complaint form and a “Prisoner Consent and Financial Certificate” form. ORDERED in Tampa, Florida, on December 20, 2022. ML Wirrryeliny STEVEND.MERRYDAY □□ UNITED STATES DISTRICT JUDGE
5.