Butler v. Francis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CURTIS LEVON BUTLER, JR.,

Plaintiff,

v. Case No. 3:23-cv-799-BJD-PDB

LAEVA FELINA FRANCIS, et al.,

Defendants.

______________________________

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff Curtis Levon Butler, Jr., an inmate of the Florida penal system,

initiated this case by filing a pro se Civil Rights Complaint under 42 U.S.C. §

1983. Doc. 1. He moves to proceed in forma pauperis. Doc. 2. He names ten

Defendants. Doc. 1 at 2-5. Four Defendants are employees of the Office of the

State Attorney, Third Judicial Circuit – Assistant State Attorney Amanda

Radloff, Victim/Witness Advocate Fabray Williams, Assistant State Attorney

Mellissa Blackwell, and State Attorney John Durrett. Id. Five Defendants are

employees of the Live Oak Police Department – Officer Brandie Harden,

Captain Jason Rountree, Detective Jermie Cheshire, Sergant N. Gutshall, and

Sergeant Ms. Chauncy. Id. at 2-4. Plaintiff also names civilian Laeva Felina

Francis as a Defendant. Id. at 5.

Plaintiff alleges that on February 22, 2022, officers from the Orange

County Sheriff’s Office illegally arrested him under a Suwannee County,

Florida, arrest warrant for shooting in an occupied dwelling. Doc. 1 at 7 (citing

State v. Butler, No. 22-73-CF). According to Plaintiff, the Suwannee County

Sheriff’s Office, in the city of Live Oak, Florida, issued the arrest warrant

because Defendant Laeva Francis reported false accusations that Plaintiff

used a firearm to shoot out all the windows of her home. Id. at 9. Plaintiff

argues that Francis made the false report the day after the shooting allegedly

happened and gave officers a copy of her home surveillance video, but the video

“showed nothing [ ] being shot.” Id. Despite a lack of physical evidence, Plaintiff

asserts Defendants Rountree, Harden, Chauncy, Chesire, and Gutshall

allowed Francis to file the false police report upon which they relied to obtain

an arrest warrant. Id.

Plaintiff contends that at the time of the shooting, he was on probation

and living in Orlando, Florida. Id. at 10. He seems to argue that on the day the

alleged shooting occurred, February 20, 2022, Defendants Francis and Harden

contacted Plaintiff’s probation officer and falsely reported that Plaintiff was

seen in Live Oak. Id. He argues that Mr. Aguillera, an Orlando probation

officer, then contacted Plaintiff, at the request of a Live Oak probation officer,

and asked Plaintiff to disclose his location and take a picture of himself. Id. at

10. Plaintiff asserts the picture he took shows he was in Orlando on February

20, 2022, at 8:33 a.m. Id. He claims that at 9:20 a.m., forty-five minutes after

Plaintiff took the picture, the alleged shooting occurred in Live Oak. Id. He

argues that it is impossible to travel to Live Oak from Orlando in forty-five

minutes, and thus the photo proves Francis made a false report. But Plaintiff

argues officers failed to conduct a proper investigation and never obtained a

copy of the photo before using the false information to obtain the arrest

warrant. Plaintiff says that after his February 22, 2022, arrest, the state did

not file an information charging him with the shooting. Thus, according to

Plaintiff, “[t]he state criminal case terminated in [his] favor when the

prosecutors filed no information on all charges.” Id.

But Plaintiff admits that the state did charge him with violating his

probation for the events involving the alleged shooting. Id. He asserts that

during the violation of probation hearing, Defendants Radloff, Williams,

Blackwell, and Durett “coached” Defendants Francis and Harden into

providing false testimony about Plaintiff’s alleged participation in the

shooting. Id. at 11. Plaintiff contends that because of Defendants’ actions, he

was erroneously found guilty of violating his probation and sentenced to a ten-

year term of incarceration. Id. According to Plaintiff, the direct appeal of his

violation of probation conviction is still pending. Id. at 12. As relief, he seeks

monetary damages. Id. at 8.

The Prison Litigation Reform Act (PLRA) requires a district court to

dismiss a complaint if the court determines the action is frivolous, malicious,

or fails to state a claim on which relief may be granted. See 28 U.S.C. §

1915(e)(2)(B). As for whether a complaint “fails to state a claim on which relief

may be granted,” the language of the PLRA mirrors the language of Rule

12(b)(6), Federal Rules of Civil Procedure, so courts apply the same standard

in both contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see

also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” that amount to “naked

assertions” will not suffice. Id. (quotations, alteration, and citation omitted). A

complaint must “contain either direct or inferential allegations respecting all

the material elements necessary to sustain a recovery under some viable legal

theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.

2001) (quotations and citations omitted).

In reviewing a pro se plaintiff’s pleadings, a court must liberally construe

the plaintiff’s allegations. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). But the duty of a

court to construe pro se pleadings liberally does not require the court to serve

as an attorney for the plaintiff. Freeman v. Sec’y, Dept. of Corr., 679 F. App’x

982, 982 (11th Cir. 2017)1 (citing GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d

1359, 1369 (11th Cir. 1998)).

Plaintiff’s Complaint is subject to dismissal under this Court’s screening

obligation because he fails to “state a claim to relief that is plausible on its

face.” See Iqbal, 556 U.S. at 678. To state a claim under § 1983, a plaintiff must

allege “(1) both that the defendant deprived [him] of a right secured under the

Constitution or federal law and (2) that such a deprivation occurred under color

of state law.” See Bingham, 654 F.3d at 1175 (alteration in original).

Except for his allegation that his “state case terminated in [his] favor,”

Plaintiff’s Complaint is identical to the complaint the Court dismissed without

prejudice for failure to state a claim in Butler v. Francis, et al., No. 3:23-cv-575-

1 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

BJD-PDB (M.D. Fla. June 8, 2023).2 Like that prior case, Plaintiff again alleges

that he is raising a claim of “illegal arrest.” Doc. 1 at 3. “Under Eleventh Circuit

precedent, [however,] the issuance of a warrant constitutes legal process, and

so a plaintiff who claims false arrest pursuant to a warrant is making a claim

of malicious prosecution rather than false arrest.” Giles v. Manser, 757 F. App’x

891, 895 (11th Cir. 2018). Thus, because Plaintiff was arrested under a

warrant, his claim is one of malicious prosecution.

To establish a § 1983 malicious prosecution claim, Plaintiff must prove

the elements of the common law tort of malicious prosecution and a violation

of his Fourth Amendment right to be free from unreasonable seizures. Grider

v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). The elements of

malicious prosecution are: “(1) a criminal prosecution instituted or continued

by the present defendant; (2) with malice and without probable cause; (3) that

terminated in the plaintiff accused’s favor; and (4) caused damage to the

2 Plaintiff failed to list his prior civil rights case in the litigation history section

of his Complaint. Doc. 1 at 15. As such, the Court issued an Order to Show Cause

directing Plaintiff to explain why this case should not be dismissed as an abuse of

judicial process. Doc. 5. In response, Plaintiff admitted he failed to notify the Court

of his prior lawsuit and acknowledged that his Complaint is essentially identical to

the complaint filed in his prior civil rights action. Doc. 6. But, according to Plaintiff,

he refiled the claim in hopes that his added allegation would be enough to state a

claim for relief. Id. That said, because this case is due to be dismissed for failure to

state a claim for malicious prosecution, the Court need not find that Plaintiff’s failure

to disclose his litigation history constitutes an abuse of judicial process.

plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003); see also

Williams v. Aguirre, 965 F.3d 1147, 1165 (11th Cir. 2020).

Here, Plaintiff again fails to state a claim for malicious prosecution.

First, the Eleventh Circuit has suggested that probation-violation proceedings

are not “criminal prosecutions” for purposes of a § 1983 malicious prosecution

claim. See Smith v. Mitchell, 856 F. App’x 248, 250 (11th Cir. 2021) (“While we

have not specifically addressed whether a probation violation is a ‘criminal

prosecution’ for purposes of a § 1983 claim for malicious prosecution, we have

held in the context of the Double Jeopardy Clause that probation-revocation

proceedings are not ‘essentially criminal’ because, rather than punishing a

criminal defendant for violating a criminal law, they are designed to determine

whether an individual has violated the terms of his probation.”); see also

United States v. Dennis, 26 F.4th 922, 927 (11th Cir. 2022) (“[B]ecause the

revocation of probation is not a stage of a criminal prosecution, the full panoply

of rights due a defendant in criminal prosecutions does not apply to . . .

revocations of probation.”) (internal quotations and citations omitted)); Gagnon

v. Scarpelli, 411 U.S. 778, 782 (1973) (holding that while probation revocation

“does result in a loss of liberty,” it, “like parole revocation, is not a stage of a

criminal prosecution”); Turner v. Floyd Med. Ctr., No. 4:20-cv-201-MLB, 2022

WL 1443390, at *3 (N.D. Ga May 6, 2022) (finding probation revocation

proceeding was not a stage of his criminal prosecution and cannot establish a

malicious prosecution claim).

Second, even if his probation-violation proceeding qualified as a

“criminal prosecution” for purposes of his claim, Plaintiff fails to allege that

the probation-violation proceeding terminated in his favor. Plaintiff alleges

that Orlando officers arrested him on February 22, 2022, under a Suwannee

County arrest warrant. A review of the Suwannee County Sheriff’s Office

website shows that Suwannee County officials took custody of Plaintiff and

booked him into the Suwannee County Jail on February 28, 2022.3 See

Suwannee County Sheriff’s Office, Suwannee County Inmate Search, available

at www.smartcop.suwanneesheriff.com (last visited Aug. 31, 2023). According

to the website, Suwannee County officers booked Plaintiff on that date because

he was arrested for four offenses – shooting into or throwing deadly missiles

into dwelling under § 790.19, Florida Statutes (arresting officer R. Kinsey);

violation of probation under § 948.06, Florida Statutes (arresting officer K.

Murray); criminal mischief under § 806.13(1)(a)(b)1, Florida Statutes

(arresting officer A. Young); and violating protective injunction under §

784.047, Florida Statutes. Id. According to the Florida Department of

Corrections’ website, the FDOC took custody of Plaintiff on March 7, 2023, and

3 The Court takes judicial notice of information on the Suwannee County

Sheriff’s Office website and the FDOC’s website.

he is serving a ten-year term of incarceration. See Florida Department of

Corrections, Offender Information Search, available at www.dc.state.fl.us (last

visited Aug. 31, 2023).

While Plaintiff asserts that the “state case terminated in his favor”

because the state did not file an information specifically charging him with

participating in the shooting, the alleged shooting was only one offense for

which Plaintiff was arrested, and was only one offense that supported his

violation of probation conviction. Plaintiff also alleges he is currently

incarcerated for that violation of probation conviction and his direct appeal of

that conviction is still pending. As such, Plaintiff fails to allege that the

violation of probation proceedings terminated in his favor, and thus he fails to

state a plausible claim for malicious prosecution.

Also, as a civilian, Defendant Francis is not a state actor subject to

liability under § 1983. And as far as Plaintiff seeks money damages against

Defendants Radloff, Blackwell, and Durrett for their actions in prosecuting

Plaintiff’s state court case or probation-revocation proceeding, those claims are

also due to be dismissed. Prosecutors are “entitled to absolute immunity from

damages for acts or omissions associated with the judicial process, in

particular, those taken in initiating a prosecution and in presenting the

government’s case.” Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (citing

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Jones v. Cannon, 174 F.3d

1271, 1281 (11th Cir. 1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th

Cir. 1984)). For these reasons, this case is dismissed without prejudice.

Accordingly, it is

ORDERED AND ADJUDGED:

1. This case is DISMISSED without prejudice.

2. The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the file.

DONE AND ORDERED at Jacksonville, Florida, this 31st day of

August, 2023.

Zi NO -

KM) Armas

United States District Judge

Jax-7

C: Curtis Butler, #X09866

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