Brown v. Supreme Court of Cobb County et al, No. 1:2009cv03148 - Document 3 (N.D. Ga. 2009)

Court Description: ORDER AND OPINION granting 2 Affidavit in Support of Request to Proceed IFP filed by Dennis Brown; dismissing case. Signed by Judge Thomas W. Thrash, Jr on 11/30/09. (dr)

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FILED P11 CHANIBER"'~'THfJ°rJASVJ. THRAF',1J IN THE UNITED STATES DISTRICT COUR X"JAMES ~"~* HATT~~EN' "I FOR THE NORTHERN DISTRICT OF GEORG YA . `? D' ATLANTA DIVISION DENNIS BROWN, Plaintiff, CIVIL RIGHTS 42 U.S .C . § 1983 V. SUPREME COURT OF COBB COUNTY ; PATRICIA ABBOTT, Esq. ; and PROBATION OFFICE OF COBB COUNTY, Defendants. CIVIL ACTION NO . 1 :09-CV-3148-TWT ORDER AND O PINION Plaintiff, Dennis Brown, has filed the instant pro se civil rights action . (Doc . 1) . The matter is now before the Court for a 28 U .S .C . § 1915(e) frivolity screening and Plaintiff's motion for leave to proceed in forma p Meris (Doc . 2) . A review of Plaintiff's financial affidavit reveals that he currently has insufficient funds to pay the filing fee . Accordingly, Plaintiff's request to proceed in forma pauperis is GRANTED. I. The Standard of Review for Screening In Fornia Pauperis Actions Title 28 U .S .C . § 1915(e)(2)(B) requires a federal court to review and dismiss an in forma pa Ueris complaint if the court determines that the action (1) is frivolous, malicious or fails to state a claim on which relief may be granted or (2) seeks AO 72A ( Rev . 8/82 ) monetary relief against a defendant who is immune from such relief . To state a claim for relief under 42 U .S .C . § 1983, a plaintiff must allege that an act or omission committed by a person acting under color of state law deprived him of a right, privilege, or immunity secured by the Constitution or laws of the United States . Hale v. Tallapoosa Count, 50 F .3d 1579, 1582 (1 Ith Cir . 1995) . If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of his claims, then the complaint is subject to dismissal, pursuant to 28 U .S .C. § 1915A. See Bell Atlantic Corp . v . Twombly, 550 U .S . 544, 555-56 (2007) (the "complaint must be dismissed" when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," not merely "conceivable") . See also Ashcroft v . I bal, U.S . , 129 S.Ct . 1937, 1951-53 (2009) (holding that Twombl-. "expounded the pleading standard for all civil actions," to wit, conclusory allegations that "amount to nothing more than a formulaic recitation of the elements of a constitutional . . .claim" are "not entitled to be assumed true," and, to escape dismissal, complaint must allege facts sufficient to move claims "across the line from conceivable to plausible") ; Papasan v. Allain, 478 U.S . 265, 286 (1986) (the court accepts as true the plaintiff's factual contentions, not his or her legal conclusions that are couched as factual 2 AO 72 A ( Rev. 6/82 ) allegations) ; Beck v. Interstate Brands Corp ., 953 F.2d 1275, 1276 (11th Cir . 1992) (the court cannot read into a complaint non-alleged facts) . II. Discussion Plaintiff alleges that, on September 24, 2008, he was arrested and charged with theft by conversion and issuing a bad check . (Doe. 1 ¶ IV) . According to Plaintiff, his trial was set for March 31, 2009, despite there being no witnesses or physical evidence . (Id .) . Plaintiff further maintains that he was never indicted, and the police officer did not report for the trial date . (Id .). Plaintiff contends that his attorney, Patricia Abbott, forced him to accept probation "with a racial threat ." (Id.). Specifically, counsel told Plaintiff that he would not "see day light nigger-boy ." (Id.). Plaintiff is currently on probation and asks this Court to award him monetary relief . (Yd . ¶ V) To recover damages for an allegedly unconstitutional conviction, a § 1983 plaintiff must first demonstrate 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U .S .C . § 2254 ." Heck v . Humphrev, 512 U .S. 477, 486-487 (1994) . If this. type of action is brought prior to the invalidation of the 3 AO 72A (Rev. 8 / 82) challenged conviction or sentence, it must, therefore, be dismissed as premature . Id . at 487 . In this case, Plaintiff has not alleged that his conviction or sentence has been reversed or otherwise called into question . To the extent that Plaintiff seeks to attack his conviction and sentence, he may file a 28 U.S.C. § 2254 habeas corpus action. See Preiser v. Rodriguez, 411 U .S . 475, 500 {1973} (holding that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus") . Plaintiff, however, must first exhaust his state court remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process") . This Court declines to construe this action as a § 2254 petition because it appears that Plaintiff has not exhausted his available state remedies . 4 AO 72A (Rev .8/82) III. Conclusion Based on the foregoing, IT IS HEREBY ORD ERED that the instant action is DISMISSED pursuant to 28 U .S .C . § 1915(e)(2)(B) . IT IS SO ORDERED this .3o day of 2009 . THOMAS W . THRASH, JR . UNITED STATES DISTRICT JUDGE 5 AO 72A (Rev .8/82)

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