Hurley v. United States of America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MICHAEL HURLEY,

Plaintiff,

v. Case No. 8:23-cv-327-MSS-NHA

SECRETARY, DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

________________________________/

O R D E R

Hurley, a state prisoner, sues the United States, the State of Florida, and the Secretary

for the Florida Department of Corrections for federal civil rights violations. (Doc. 6) Hurley,

who paid the filing fee, served the amended complaint on the Secretary. (Doc. 9) Hurley

moves for a preliminary injunction and appointment of counsel (Docs. 7, 15, 23, and 24),

moves for service of his amended complaint on the United States and the State of Florida

(Docs. 15 and 28), and requests that the United States and the State of Florida waive sovereign

immunity and immunity under the Eleventh Amendment. (Doc. 25) Hurley further files a

notice of default against the United States and the State of Florida (Doc. 26). The United

States enters a limited appearance and responds to the notice. (Doc. 27)

In his amended complaint, Hurley alleges that a state prosecutor in Hillsborough

County, Florida, charged him with six crimes, the trial court granted the defense motion to

sever several counts, the trial court appointed new counsel to represent Hurley in the new case

with the severed counts, new counsel moved for a continuance, and Hurley objected. (Doc. 6

at 22–23) After conducting a hearing to comply with Faretta v. California, 422 U.S. 806 (1975),

the trial court denied Hurley’s request to represent himself, instead permitted him to act as

“co-counsel,” and granted new counsel a continuance. (Doc. 6 at 23–24)

Hurley alleges that, sixty days later, the trial court permitted him to represent himself

without conducting a Faretta hearing. (Doc. 6 at 24) After the case was transferred to a new

division, the successor judge joined all counts and permitted Hurley to represent himself at

trial on all counts. (Doc. 6 at 24–25) Hurley contends that, after a jury found him guilty,

appointed counsel failed to request transcripts to demonstrate that the successor judge

erroneously joined the charges and failed to comply with Faretta. (Doc. 6 at 24–25) He further

contends that he attempted to raise these claims post-conviction and the post-conviction court

denied the claims as procedurally defaulted and meritless. (Doc. 6 at 26) He contends that his

appellate counsel on direct appeal refused to provide Hurley documents missing from the

record. (Doc. 6 at 28)

Hurley further asserts that, on direct appeal and during post-conviction proceedings,

prison officials failed to comply with an injunction in Hooks v. Moore, Nos. 3:71-cv-144-HLA-

JK (M.D. Fla.) and 3:71-cv-1011-HLA-JBT (M.D. Fla.), requiring the prison to provide him

access to a prison law library managed by qualified librarians and law clerks. (Doc. 6 at 27)

Because a prison law clerk failed to type the proper oath on Hurley’s post-conviction motion,

the post-conviction court dismissed the motion as facially deficient. (Doc. 6 at 28–29) Because

of the prison law clerk’s erroneous advice, a federal court dismissed Hurley’s petition for a

writ of habeas corpus as time barred. (Doc. 6 at 29)

Hurley unsuccessfully petitioned the state supreme court for relief asserting that the

prison denied his right to access to courts. (Doc. 6 at 28) A federal court dismissed, under

28 U.S.C. § 1915(e)(2)(B), Hurley’s federal civil rights complaint asserting that the prison

denied his right to access to courts. (Doc. 6 at 29–30) The federal court determined that Heck

v. Humphrey, 512 U.S. 477 (1994), barred the claim. (Doc. 6 at 30) Hurley contends that Heck

did not bar his claim because he demanded injunctive relief. (Doc. 6 at 30) The court of

appeals denied Hurley’s request to appeal in forma pauperis. (Doc. 6 at 31) Hurley attempted

to further challenge the prison’s and the State of Florida’s failure to provide meaningful access

to the courts. A federal court determined that 28 U.S.C. § 1915(g), barred Hurley from filing

further civil rights actions in forma pauperis. (Doc. 6 at 31–32) Hurley contends that the state

courts also dismissed his claims under Section 57.085(6)(a), Florida Statutes, a statute that

authorizes a state court to screen and dismiss a prisoner’s complaint for failure to state a claim.

(Doc. 6 at 32)

Consequently, Hurley asserts that the state court denied him the assistance of counsel

under the Sixth Amendment and Fourteenth Amendment, the state court failed to comply

with Faretta and protect his right to represent himself, and the prison failed to protect his

constitutional right to access to courts. (Doc. 6 at 33–34) Hurley raises both facial and

as-applied constitutional challenges to the following statutes, rules, and regulations (Doc. 6

at 35–97):

(1) Section 27.51(1)(a), Florida Statutes, a statute that

guarantees an indigent person who is charged with a

felony the right to counsel (Count One and Count Two),

(2) Rule 9.140(d)(1)(B), Florida Rules of Appellate

Procedure, a rule requiring trial counsel to identify the

transcripts necessary for direct appeal before withdrawing

from representation (Count Three and Count Four),

(3) 28 U.S.C. § 2244(d)(1)(A), a statute requiring a person to

file a petition for a writ of habeas corpus challenging a

state court judgment no later than one year after the

judgment becomes final (Count Five and Count Six),

(4) Section 944.023(1)(b), Florida Statutes, a statute that

defines the “total capacity” of the state correctional

system (Count Seven and Count Eight),

(5) Rule 33-501.301, Florida Administrative Code, a rule

governing the administration of a prison law library

(Count Nine and Count Ten),

(6) Section 960.293(2), Florida Statutes, a statute authorizing

the State of Florida to recover money for the cost of

incarceration from a prisoner (Count Eleven and Count

Twelve),

(7) 28 U.S.C. § 1915(b)(1), a statute that authorizes a federal

court to place a lien on an inmate account to pay for an

indigent prisoner’s filing fee (Count Thirteen and Count

Fourteen),

(8) 28 U.S.C. § 1915A, a statute that authorizes a federal

court to screen for sufficiency and frivolity a prisoner’s

complaint that raises a claim against a governmental

entity or officer (Count Fifteen),

(9) 28 U.S.C. § 1915(g), a statute that bars from proceeding

in forma pauperis a prisoner who suffers three or more

dismissals of civil actions for frivolity or failure to state a

claim (Count Sixteen and Count Seventeen),

(10) 42 U.S.C. § 1997e(c), a statute that authorizes a federal

court to screen for sufficiency and frivolity a prisoner’s

complaint that raises a claim based on prison conditions

(Count Eighteen and Count Nineteen),

(11) Section 57.085, Florida Statutes, a statute that authorizes

a state court to place a lien on an inmate account to pay

for a filing fee and to screen for sufficiency and frivolity

an indigent prisoner’s complaint (Count Twenty and

Count Twenty-One), and

(12) Section 945.6038, Florida Statutes, a statute that

authorizes a prison to place a lien on an inmate account

for the cost of photocopies and postage for a prisoner’s

civil case (Count Twenty-Two and Count Twenty-

Three).

Hurley demands the appointment of a special master, the appointment of class

counsel, a judgment declaring that the above listed statutes, rules, and regulations violate the

federal constitution both facially and as applied to Hurley, and compensatory damages for

costs and fees that he incurred filing actions in state court, fifty thousand dollars for each year

of his imprisonment, and punitive damages. (Doc. 6 at 97–124)

The Secretary moves to dismiss the amended complaint. (Doc. 11) Also, because

Hurley, a prisoner, sues governmental entities and a governmental officer, the Court reviews

whether the complaint is frivolous or malicious, fails to state a claim on which relief may be

granted, or seeks monetary relief from a defendant who is immune from relief. 28 U.S.C.

§ 1915A(b).

STANDARD OF REVIEW

“[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) (citation

omitted). “While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Iqbal, 556 U.S. at 679. Allegations in a pro se pleading are

reviewed liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

ANALYSIS

Class Certification

Hurley alleges that he is a member of a class defined as “[a]ll persons who, now, or in

the future will be incarcerated as inmates in a facility run by the Florida Department of

Corrections [and] who have legal needs and no means by which to purchase legal assistance

or advice.” (Doc. 6 at 6) He demands that the Court appoint class counsel. (Doc. 6 at 98–99)

The statute that permits a party to proceed pro se provides “a personal right that does not

extend to the representation of the interests of others.” Timson v. Sampson, 518 F.3d 870, 873

(11th Cir. 2008) (citing 28 U.S.C. § 1654). Consequently, Hurley’s construed motion for class

certification is DENIED.

Res Judicata

In four earlier federal civil rights actions, Hurley raised claims based on the same facts

alleged in the complaint in this case. In Hurley v. Moore, No. 4:01-cv-517-WS (N.D. Fla.), ECF

No. 11, Hurley sued the State of Florida, the United States, the Secretary of the Florida

Department of Corrections, Judge Donald Evans, Judge Cynthia Holloway, a prosecutor,

two public defenders, and an appointed counsel. He asserted that the defendants conspired to

violate his federal right to access to courts by waiving his federal right to a speedy trial, by

failing to provide an adequate record on appeal, by failing to provide a prison law library

managed by competent staff, by denying post-conviction relief, and by dismissing his federal

habeas petition as time barred. No. 4:01-cv-517-WS (N.D. Fla.), ECF No. 11.

Judge William Sherrill recommended the dismissal of Hurley’s amended complaint as

follows (4:01-cv-517-WS (N.D. Fla.), ECF No. 15 at 2–7) (record citations omitted):

Plaintiff has complained that in July of 1992, he was arrested and

charged with three counts of sexual battery and three counts of

lewd and lascivious acts. Plaintiff was assigned an assistant

public defender, who has not been named as a defendant in this

case. Plaintiff’s case was assigned to Defendant Evans, a judge

in the Thirteenth Judicial Circuit in the State of Florida. At some

point, Defendant Espinosa, the assistant state attorney,

Defendant Evans and Defendant Levinson (another assistant

public defender) and Defendant Fernandez (court appointed

attorney) allegedly conspired to waive Plaintiff’s right to a speedy

trial.

Thereafter, Defendant Levinson filed a notice of conflict which

Plaintiff contends is false. However, at a subsequent hearing,

Plaintiff stated that he did not object to not being represented by

the public defender’s office and Defendant Fernandez was

appointed to represent Plaintiff. Defendant Fernandez then

requested a continuance, but Plaintiff objected. Defendant Evans

advised Plaintiff that his only two choices were to waive the right

to speedy trial or waive the right to counsel and represent

himself. Plaintiff chose to represent himself but, after a Faretta

hearing, Defendant Evans denied Plaintiff’s request to act as his

own counsel. Defendant Fernandez remained as Plaintiff’s

attorney, but was apparently appointed as co-counsel for

Plaintiff. Thereafter, Plaintiff was permitted to act as his own

attorney with Defendant Fernandez acting as “stand-by

counsel.” Plaintiff contends that this decision was made without

a Faretta inquiry. Plaintiff’s case eventually went to trial before

Judge Susan Bucklew and Plaintiff, while representing himself,

was found guilty.

Plaintiff filed a direct appeal with counsel from the public

defender’s office appointed to represent him. Plaintiff appears to

complain that pretrial proceedings were not made part of the

record on appeal. At any rate, Defendant Ferreri was appointed

as counsel and Plaintiff advised him of certain pretrial issues he

wanted raised on direct appeal. Defendant Ferreri refused. The

brief counsel submitted raised only one of several issues that

Plaintiff had requested be raised, “that the trial court failed to do

a proper [Faretta] inquiry.” Plaintiff’s direct appeal was denied

by the Second District Court of Appeal. Thereafter, Plaintiff

sought a writ of mandamus which was also denied by the

appellate court.

Plaintiff complains that he was not given meaningful access to

the prison library and that prison law clerks are not adequately

trained and supervised. Plaintiff complains that his Rule 3.850

motion (typed by a prison law clerk) was dismissed, allegedly

because it was not properly sworn. His motion for rehearing and

the appeal of the denial of his Rule 3.850 motion were also

denied. Plaintiff then filed another Rule 3.850 motion which was

denied as being procedurally barred, as was his appeal.

He then filed a petition for writ of habeas corpus and complained

that he was denied the effective assistance of appellate counsel.

The petition was denied, his motion for rehearing was denied,

and the Florida Supreme Court denied him relief, apparently

also finding his claims procedurally barred.

Following that denial, Plaintiff filed a Section 2254 petition. It

was eventually denied, the denial was affirmed by the Eleventh

Circuit, and the United States Supreme Court denied his petition

for writ of certiorari.

Plaintiff’s claims in this case are brought pursuant to, inter alia,

42 U.S.C. § 1983. A successful Section 1983 action requires a

plaintiff to show he was deprived of a federal right by a person

acting under “color of state law.” Harvey v. Harvey, 949 F.2d

1127, 1130 (11th Cir. 1992) (citing Flagg Bros., Inc. v. Brooks, 436

U.S. 149, 155–57 (1978)). Public defenders [and] assistant public

defenders are not “state actors” in this situation and are not liable

under Section 1983. Richardson v. Fleming, 651 F.2d 366, 371 (5th

Cir. 1981); Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir. 1978);

Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985). The actions

of defense counsel in this circumstance are the acts of a private

party. Accordingly, Plaintiff may not raise these Section 1983

claims against Defendants Ferreri, Levinson, and Fernandez

because the requirement of a “state actor” is absent. The claims

against them should be dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii).

Additionally, the absolute immunity of a defendant is one of a

number of grounds which justifies dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(iii). Clark v. State of Ga. Pardons and Paroles Bd.,

915 F.2d 636, 640 n.2 (11th Cir. 1990) [ ]. A judge acting in his

judicial capacity is entitled to absolute immunity from liability

for damages under Section 1983 unless he acts in the “clear

absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349,

355–57 (1978). In Stump, the Supreme Court set “forth a

two-part test for determining when a judge is entitled to

immunity from money damages liability when sued under

Section 1983.” Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.

1996) (citing Stump, 435 U.S. [at 349]). “The first part of the test

is whether the judge dealt with the plaintiff in a judicial

capacity.” Simmons, 86 F.3d at 1084–85 (quoting Stump, 435

U.S. at 362). In this case, it is clear that the Defendants Evans

and Holloway acted within their judicial capacities.

The second part of the test looks at “whether the judge acted in

the ‘clear absence of all jurisdiction.” 86 F.3d at 1085; 435 U.S.

at 357 (quoting Bradley v. Fisher, [80 U.S. 335 (1871)]). It is

evident that these two judges also satisfy the second part of the

Stump test as they clearly had jurisdiction over Plaintiff.

Therefore, the claims against Defendants Evans and Holloway

must be dismissed as these Defendants are absolutely immune

from suit for actions taken in their capacities as judges.

Additionally, Plaintiff’s claims against Defendant [the Secretary

of Florida Department of Corrections] and the State of Florida

are barred by the Eleventh Amendment. The Eleventh

Amendment bars suits against the State and its employees in

their official capacity for money damages unless waived by the

State or Congress. Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 97–103 (1984). The State of Florida has not waived its

immunity. Gamble v. Fla. Dep’t Health and Rehab. Servs., 779 F.2d

1509, 1520 (11th Cir. 1986). Congress has also not waived the

immunity of the states through Section 1983. Edelman v. Jordan,

415 U.S. 651 (1974). While Congress could abrogate the

immunity of the states, it must express itself without

equivocation, and it has not done so here. Pennhurst, 465 U.S. at

99. Therefore, Plaintiff cannot sue Defendants [the Secretary] or

the State of Florida for civil damages.

Moreover, all claims asserted by Plaintiff seek to undermine his

criminal conviction. It is clear that a prisoner may not seek to

reduce his period of confinement pursuant to a civil rights claim.

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey,

512 U.S. 477 (1994). An attack on the length or duration of

confinement is essentially a habeas corpus claim which must be

brought before the court through the filing of a petition under

28 U.S.C. § 2254, a step that has already been taken and relief

has been denied. Plaintiff may not use a civil rights action as an

attempt to gain habeas relief.

Plaintiff’s claims, if proven, “necessarily imply the invalidity” of

his term of imprisonment and thus are not cognizable under

Section 1983. Edwards v. Balisok, 520 U.S. 641 (1997) (extending

Heck to an inmate’s procedural challenge to a disciplinary

hearing that resulted in the loss of gain time). A claim for

damages that is related to a conviction that has not yet been

reversed or invalidated is not cognizable under 42 U.S.C. § 1983.

Heck, 512 U.S. at 477.1 To recover damages for allegedly

unconstitutional conduct which led to a conviction and

imprisonment, Plaintiff must prove that the conviction or

sentence has been reversed on appeal, expunged by an executive

order, declared invalid by a state tribunal, or called into question

by a federal court’s issuance of a writ of habeas corpus. Id. Until

that happens, a claim under Section 1983 has not yet arisen. Id.

at [477–78]. Accordingly, this Court may not consider any of

Plaintiff’s claims in this case because all of them, if true, imply

that Plaintiff’s conviction was unconstitutional.

1 It matters not that Plaintiff seeks relief in the form

of damages in addition to injunctive and

declaratory relief.

In light of the foregoing, it is respectfully recommended that

Plaintiff’s amended civil rights complaint be dismissed for failure

to state a claim upon which relief may be granted pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii), for lack of subject matter

jurisdiction, and because Plaintiff has sought relief from

Defendants who are immune from suit under 28 U.S.C.

§ 1915(e)(2)(B)(iii) . . . .

Judge William Stafford adopted Judge Sherrill’s recommendation. 4:01-cv-517-WS

(N.D. Fla.), ECF No. 18. Hurley appealed, and the court of appeals denied leave to proceed

in forma pauperis after determining that his appeal was frivolous. 4:01-cv-517-WS (N.D. Fla.),

ECF No. 32.

In Hurley v. Florida, No. 5:03-cv-108-WTH (M.D. Fla.), ECF No. 1, Hurley sued the

State of Florida, the United States, the Secretary of the Florida Department of Corrections,

Judge Evans, Judge Holloway, a prosecutor, a public defender, and an appointed counsel. He

asserted that the defendants violated his federal right to access to courts by failing to provide

effective assistance of counsel, by failing to provide an adequate record on appeal, by failing

to provide access to a prison law library managed by competent staff, and by causing the

dismissal of his federal habeas petition as untimely. No. 5:03-cv-108-WTH (M.D. Fla.), ECF

No. 1.

Judge William Hodges dismissed the complaint as frivolous (No. 5:03-cv-108-WTH

(M.D. Fla.), ECF No. 11) (record citations omitted):

Plaintiff, a prisoner of the State of Florida proceeding pro se,

initiated this action by filing a class action1 civil rights complaint

pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Florida

government officials deliberately and conspiratorially act to

deprive poor criminal defendants equal, equitable, and

meaningful access to the courts. Plaintiff is proceeding in forma

pauperis.

1 Plaintiff seeks to represent “the class of poor

Florida litigants, criminal defendants, and

prisoner litigants who are denied meaningful

access to the courts for the illegal class-based

reason that they are poor.”

Relief Sought

(1) Plaintiff seeks a declaratory judgment that the trial,

appellate review, and collateral proceedings afforded an

indigent criminal defendant in the State of Florida, do not

meet constitutional standards.

(2) After finding that the State has denied equal and equitable

access to indigent criminal defendants, change the strict

standards of the Antiterrorism and Effective Death

Penalty Act.

(3) Award Plaintiff actual, compensatory, and punitive

damages for being falsely imprisoned for ten years.

. . .

Discussion

This case is due to be dismissed as frivolous because Plaintiff has

no chance of success. In Heck v. Humphrey8, the Supreme Court

of the United States found:

[I]n order to recover damages for [an] allegedly

unconstitutional conviction or imprisonment, or

for other harm caused by actions whose

unlawfulness would render a conviction or

sentence invalid, a § 1983 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, 512 U.S. at 487 (footnote omitted). Moreover, the Supreme

Court stated that one reason for imposing such a requirement is

to prevent a convicted criminal defendant from collaterally

attacking his criminal conviction through a civil suit. Id. at 484.

8 512 U.S. 477, 114 S. Ct. 2364 (1994).

Upon review of the complaint, Plaintiff is alleging that the

Defendants have created a system in which it is nearly impossible

for an indigent criminal defendant in the State of Florida to

receive a fair trial. Plaintiff specifically states that the

appointment of a public defender deprives the poor criminal

defendant of his right to the effective assistance of counsel.

Further, Plaintiff states that the strict state and federal

post-conviction procedural rules deprive a poor criminal

defendant of meaningful review of his conviction. In support of

his position, Plaintiff outlines the facts surrounding his own

Florida state conviction, the ineffectiveness of his trial counsel,9

and the inadequacies surrounding his own attempts at post-

conviction review.

9 Plaintiff was represented at trial by the Office of

the Public Defender, Thirteenth Judicial Circuit.

It is clear in this case that a decision favorable to Plaintiff would

necessarily imply the invalidity of his conviction10 and that

Plaintiff 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 a federal

court’s issuance of a writ of habeas corpus.11 Accordingly,

Plaintiff has no chance of success on the merits of his claims and

this case is due to be dismissed as frivolous.

10 Harden v. Pataki, 320 F.3d 1289, 1291 (11th Cir.

2003) (citing Heck, 512 U.S. at 487).

11 In fact, Plaintiff’s federal habeas [petition] under

28 U.S.C. § 2254 was dismissed as time barred on

October 13, 1999. See Hurley v. Moore, No. 8:98-cv-

1028-SDM-MAP (M.D. Fla. 1998). That decision

was affirmed on appeal to the Eleventh Circuit.

See Hurley v. Moore, 233 F.3d 1295 (11th Cir.), cert.

denied, 532 U.S. 1013, 121 S. Ct. 1746 (2001).

Hurley appealed, and the court of appeals denied Hurley’s motion for leave to appeal

in forma pauperis and dismissed the appeal as frivolous (No. 5:03-cv-108-WTH (M.D. Fla.),

ECF No. 19):

Upon reconsideration of this Court’s order dated October 27,

2003, appellant’s motion for leave to proceed [in forma pauperis]

is denied and this appeal is dismissed as frivolous. See 28 U.S.C.

§ 1915(e)(2)(B)(i). Appellant has cited no case law suggesting

that there exists an exception to the abuse-of-discretion standard

of review for a district court’s frivolity dismissal of a prisoner

lawsuit, nor has he cited any case law from this Court in support

of the proposition that a district court may not dismiss a

complaint with prejudice when it is barred by the doctrine

established in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).

Furthermore, because appellant’s criminal and post-conviction

proceedings in state court had terminated no later than 1998,

more than four years before he filed the complaint at issue here,

any claims with respect to those proceedings are barred by the

applicable four-year statute of limitations. See Burton v. City of

Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999). Finally,

appellant has failed to identify any specific case within the

limitations period in which he was denied his constitutional right

to meaningful access to the courts.

In Hurley v. Florida, No. 5:05-cv-212-WTH-GRJ (M.D. Fla.), ECF No. 1, Hurley sued

the State of Florida, the United States, the Secretary of the Florida Department of Corrections,

Judge Evans, Judge Holloway, a prosecutor, and two public defenders. He asserted that the

defendants denied his federal right to access to courts by failing to provide effective assistance

of counsel, by failing to provide an adequate record on appeal, by unfairly denying his

post-conviction claims as procedurally defaulted, by causing the dismissal of his federal

habeas petition as untimely, and by screening and dismissing his earlier federal civil rights

complaint under the Prison Reform Litigation Act. No. 5:05-cv-212-WTH-GRJ (M.D. Fla.),

ECF No. 1.

Judge Hodges dismissed the complaint as frivolous (No. 5:05-cv-212-WTH-GRJ

(M.D. Fla.), ECF No. 10) (record citations omitted):

This case was initiated upon the filing of a civil rights complaint

on April 28, 2005. Plaintiff was granted permission to proceed as

a pauper on May 3, 2005.

The Complaint

In the complaint, Plaintiff alleges that the defendants, the State

of Florida, the United States of America, two state judges, an

assistant state attorney, and two state public defenders, all

conspired to deprive poor prisoner litigants with equal and

meaningful access to the courts.1 Specifically, Plaintiff alleges

that during his state criminal proceedings, the defendants

conspired to deprive Plaintiff of constitutionally adequate

process. These conspiratorial acts resulted in Plaintiff’s state

criminal conviction and sentence, and the denial of his appeals

and other post-conviction review. Moreover, when Plaintiff

attempted to raise these issues in a prior federal civil rights

complaint, the federal district court, appellate court, and even the

Supreme Court of the United States, denied Plaintiff meaningful

access to the courts by violating his procedural due process

rights.

1 Plaintiff attempts to bring this case as a class

action, however, class certification would clearly

be inappropriate in this instance. First, Plaintiff

fails to comply with Local Rule 4.04 as he has

failed to provide “detailed allegations of fact

showing the existence of the several prerequisites

to a class action as enumerated in Fed. R. Civ. P.

23(a) and (b).” Second, class representatives

cannot appear pro se. Pursuant to Fed. R. Civ. P.

23(a)(4), a class representative must “fairly and

adequately protect the interests of the class.” It is

well established that while a litigant may bring his

own claims to federal court without counsel, the

pro se litigant cannot bring the claims of others. See

Fymbo v. State Farm Fire and Cas. Co., 213 F.3d

1320, 1321 (10th Cir. 2000); see also Fowler v. Lee,

18 F. App’x 164, 165 (4th Cir. 2001) (stating that

it is “plain error for a pro se inmate to represent

other inmates in a class action”); Howard v.

Dougan, 221 F.3d 1334 (6th Cir. 2000) (concluding

that an incarcerated pro se litigant could not

represent a class); Gonzales v. Wyatt, 157 F.3d

1016, 1021 (5th Cir. 1998) (holding that a pro se

litigant cannot represent other litigants in federal

court); Eagle Assocs. v. Bank of Montreal, 926 F.2d

1305, 1308–09 (2d Cir. 1991) (refusing to permit a

pro se litigant to represent other litigants in federal

court).

. . .

Discussion

A review of the Court’s docket reveals that this is the second time

that Plaintiff has raised his claim that he was denied adequate

and meaningful access to the courts during his state criminal

proceedings. In Middle District of Florida case number 5:03-cv-

108-WTH-GRJ, Plaintiff’s claims were dismissed under

28 U.S.C. § 1915 because Plaintiff had no chance of success on

the merits.10 The Court found that under the doctrine of Heck v.

Humphrey,11 a decision favorable to Plaintiff on his claims would

necessarily imply the invalidity of his conviction and that

Plaintiff had failed to make a showing that his conviction or

sentence had 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.12

10 Hurley v. Florida, No. 5:03-cv-108-WTH-GRJ

(M.D. Fla. 2003), ECF No. 11.

11 512 U.S. 477 (1994).

12 Harden v. Pataki, 320 F.3d 1289, 1291 (11th Cir.

2003) (citing Heck, 512 U.S. at 487).

The only new issue Plaintiff raises in the instant complaint is this

Court’s use of the PLRA as a basis for denying Plaintiff’s

previous complaint. However, that issue is properly raised on

direct appeal of the Court’s previous order, and in fact, was

raised on appeal of that case to the Eleventh Circuit Court of

Appeals. The Eleventh Circuit found Plaintiff’s appeal to be

unsubstantiated and frivolous.13 Further, the Eleventh Circuit

alternatively found that Plaintiff’s claims involving his state

criminal proceedings were barred by the applicable four-year

statute of limitations.

13 See Hurley v. Florida, No. 5:03-cv-108-WTH-GRJ

(M.D. Fla.), ECF No. 19.

Accordingly, all of the claims raised in the instant case have

previously been adjudicated. Therefore, Plaintiff has no chance

of success on the merits and this case is due to be dismissed as

frivolous.

Hurley appealed, and the court of appeals dismissed his appeal for lack of prosecution. No.

5:05-cv-212-WTH-GRJ (M.D. Fla.), ECF No. 17.

In Hurley v. United States, No. 1:14-cv-140-MW-GRJ (N.D. Fla.), ECF No. 1, Hurley

filed a fourth civil rights complaint, sued the United States, the State of Florida, and the

Secretary of Florida Department of Corrections, and alleged facts arising from his state

criminal case, post-conviction and federal habeas proceedings, and federal civil rights cases.

He asserted that the defendants violated his federal right to access to courts and raised facial

and as-applied challenges to state and federal statutes. No. 1:14-cv-140-MW-GRJ (N.D. Fla.),

ECF No. 1. Judge Mark Walker adopted Judge Gary Jones’s recommendation to dismiss the

complaint under 28 U.S.C. § 1915(g), the Prison Reform Litigation Act’s three “strikes”

provision. No. 1:14-cv-140-MW-GRJ (N.D. Fla.), ECF No. 6. Hurley appealed, and the court

of appeals dismissed his appeal for lack of prosecution. No. 1:14-cv-140-MW-GRJ (N.D.

Fla.), ECF Nos. 16 and 20.

“Under res judicata, also known as claim preclusion, a final judgment on the merits

bars the parties to a prior action from re-litigating a cause of action that was or could have

been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001).

“A subsequent suit is barred under the doctrine of claim preclusion when the following four

elements are present: (1) there is a final judgment on the merits, (2) the decision was rendered

by a court of competent jurisdiction; (3) the same cause of action is involved in both cases;

and (4) the parties, or those in privity with them, are identical in both suits.” Baloco v.

Drummond Co., Inc., 767 F.3d 1229, 1246 (11th Cir. 2014). “The court next determines

whether the claim in the new suit was or could have been raised in the prior action; if the

answer is yes, res judicata applies.” In re Piper Aircraft Corp., 244 F.3d at 1296. “‘[I]f a case

arises out of the same nucleus of operative fact[s], or is based upon the same factual predicate,

as a former action, [ ] the two cases are really the same claim or cause of action for purposes

of res judicata.’” In re Piper Aircraft Corp., 244 F.3d at 1296 (citation omitted).

The claims in Hurley’s amended complaint in this case arise from the same facts and

circumstances as the complaints in his earlier federal civil rights complaints. Hurley sues the

same defendants whom he sued in No. 4:01-cv-517-WS (N.D. Fla.), No. 5:03-cv-108-WTH

(M.D. Fla.), and No. 5:05-cv-212-WTH-GRJ (M.D. Fla.) — the Secretary of the Florida

Department of Corrections, the United States, and the State of Florida. (Doc. 6 at 7–8) He

alleges that the trial judge in his state criminal case failed to comply with Faretta, appellate

counsel failed to provide documents from the record on direct appeal, prison officials failed

to provide an adequate prison law library managed by competent staff, the post-conviction

court and federal habeas court erroneously denied relief, and a federal court erroneously

dismissed his federal civil rights complaint. (Doc. 6 at 24–32) His facial and as-applied

challenges to statutes, rules, and regulations arise from alleged violations of his federal right

to access to courts during his state court criminal case, his post-conviction and federal habeas

proceedings, and his first, second, and third federal civil rights cases. (Doc. 6 at 33–97)

Because Hurley could have raised the facial and as-applied challenges in the earlier federal

civil rights cases, res judicata bars those claims.

The only claim that Hurley could not have raised in the first, second, and third federal

civil rights cases is his challenge to 28 U.S.C. § 1915(g), the PRLA’s three “strikes” provision.

On August 27, 2014, in the fourth federal civil rights case, Judge Walker adopted Judge

Jones’s recommendation to dismiss the action under Section 1915(g). Hurley, No. 1:14-cv-

140-MW-GRJ (N.D. Fla.), ECF No. 6. Hurley could have raised his facial and as-applied

challenges to Section 1915(g) in that fourth federal civil rights case. Also, a four-year statute

of limitation applies to Hurley’s challenges to Section 1915(g). Doe as Next Friend of Doe #6 v.

Swearingen, 51 F.4th 1295, 1303 (11th Cir. 2022). Because Hurley became aware of the facts

supporting the claims in 2014 and placed in the hands of prison officials for mailing the civil

rights complaint in this action on February 7, 2023 (Doc. 1-2 at 2), the claims are barred by

the four-year limitation. Lastly, Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998), abrogated on other

grounds by Jones v. Bock, 549 U.S. 199 (2007), rejected a constitutional challenge to Section

1915(g) and held that the three “strikes” provision does not violate an inmate’s right to access

to courts.

Accordingly, Hurley’s amended complaint (Doc. 6) is DISMISSED as barred by res

judicata and for failure to state a claim. 28 U.S.C. § 1915A(b). Because a more carefully

drafted complaint could not state a claim, Hurley is not granted leave to amend. Woldeab v.

Dekalb Cty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018). All pending motions (Docs. 7,

11, 15, 24, 25, 28) are DENIED as moot. The Clerk is DIRECTED to CLOSE this case.

DONE AND ORDERED in Tampa, Florida on J anuary 30, 2024,

MARYS SGRIVEN

UNITED STATES DISTRICT JUDGE

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