United States District Court, N.D. West Virginia
JOHNNY D. FLOYD, SR., Plaintiff,
CORPORAL/SERGEANT MATTHEW LOVE, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DISMISSING
THE PLAINTIFF'S COMPLAINT AND DENYING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se plaintiff, a federal inmate who is housed
at FCI Gilmer, instituted this civil action pursuant to 42
U.S.C. § 1983. ECF No. 1. In his complaint, the
plaintiff alleges that the misconduct of the defendant, a
member of the Marion County Sheriff's Department,
resulted in his federal indictment, and the necessity of his
guilty plea. ECF No. 1 at 5-6.
plaintiff alleges that after his arrest, the defendant
entered the plaintiff's occupation as “crack
dealer” on a police report. ECF No. 1 at 8. The
plaintiff then alleges that, as a result of having this label
attached to him, his attorney advised him he would be found
guilty, leading him to take a plea deal for a lesser
sentence. ECF No. 1 at 9. The complaint charges the defendant
with defamation of his character in violation of the Fifth
and Fourteenth Amendments. ECF No. 1 at 9. For relief, the
plaintiff seeks monetary damages in the amount of $250,
000.00 and injunctive relief by ordering
“Defamation/title ‘crackdealer' be
removed.” ECF No. 1 at 11. The plaintiff also filed a
motion for leave to proceed in forma pauperis. ECF
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge then
entered a report and recommendation. ECF No. 7. In that
report and recommendation, the magistrate judge recommended
that the plaintiff's complaint be dismissed as frivolous
and the plaintiff's motion for leave to proceed in
forma pauperis be denied as moot. The magistrate judge
noted that the Supreme Court has held that to prevail on a
§ 1983 claim where the alleged unlawful conduct would
render a conviction or sentence invalid, the “plaintiff
must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a
determination, or called into question by a federal
court's issuance of a writ of habeas corpus . . .
.” Heck v. Humphrey, 512 U.S. 477, 487 (1994).
Because the plaintiff's complaint does not meet the
requirements of a § 1983 claim, the magistrate judge
found that “the [p]laintiff has no chance of success on
the merits, and his claim is frivolous.” ECF No. 7 at
the magistrate judge recommended that the complaint be
dismissed as frivolous and that plaintiff's pending
motion for leave to proceed in forma pauperis (ECF
No. 2) be denied as moot pursuant to 28 U.S.C. §
1915(e)(2)(B). The plaintiff did not file objections to the
report and recommendation of the magistrate judge.
reasons set forth below, the report and recommendation of the
magistrate judge (ECF No. 7) is affirmed and adopted.
Therefore, the complaint (ECF No. 1) is dismissed and the
plaintiff's motion for leave to proceed in forma
pauperis (ECF No. 2) is denied as moot.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because no objections were filed, all findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). As the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge properly reviewed the plaintiff's
complaint to determine whether it was frivolous. A complaint
is frivolous if “it lacks an arguable basis either in
law or fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint is also frivolous if the
plaintiff has little or no chance of success. See Estelle
v. Gamble, 429 U.S. 97, 106 (1976).
civil action, the magistrate judge correctly held the pro
se complaint to less stringent standards than those
complaints drafted by attorneys. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, even
liberally construed, the magistrate judge correctly
determined that the plaintiff's complaint is frivolous
because it “has no chance of success.” ECF No. 7
Court agrees with the magistrate judge that the plaintiff has
no chance of success in this civil action because a decision
favorable to the plaintiff “would necessarily imply the
invalidity of his conviction or sentence.” Harden
v. Pataki, 320 F.3d 1289, 1291 (11th Cir. 2003) (citing
Heck, 512 U.S. 477 at 487). As the magistrate judge
the [p]laintiff has failed to make a showing that his
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or called
into question by ...