HOGAN

v.

PRATICO

Plaintiff, a federal inmate, initiated this action by filing a pro se Civil Rights Complaint (Doc. 1; Compl.) and a motion to proceed as a pauper (Doc. 3). He names one Defendant: Derek A. Pratico, a detective with the Jacksonville Sheriff’s Office (JSO). Plaintiff asserts a Fourth Amendment violation against Detective Pratico for intentionally and knowingly giving a false statement to the grand jury “during his application for an arrest warrant.” Compl. at 3-4. As relief, Plaintiff seeks compensatory damages in the amount of $5,000,000 for the Fourth Amendment violation and nominal damages because his “fundamental rights [have] been violated.” Id. at 7. This is the second complaint Plaintiff has filed against Detective Pratico related to his federal conviction. See Case No. 3:19-cv-727-J-39JBT (dismissed because Detective Pratico is entitled to absolute immunity for his grand jury testimony).¹ Plaintiff again alleges Detective Pratico knowingly provided false testimony before the grand jury. See Compl. at 5. According to Plaintiff, Detective Pratico falsely testified to the grand jury that the federal indictment correctly referenced the serial number of the gun Plaintiff was charged with possessing.² Id. Plaintiff also references Detective Pratico’s “application for a [f]ederal [a]rrest warrant,” suggesting Pratico provided false information in support of a warrant affidavit. Id. at 6. In support of his allegations, Plaintiff offers three exhibits. Exhibit A is a report of the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), prepared at the request of Detective Pratico, in which the reporting agent concludes a gun with serial number KTV892 had moved in interstate commerce (Doc. 2-1). Exhibit B is a second ATF report summarizing an interview with a witness to the incident for which

Officers, 413 F. App’x 206, 209 (11th Cir. 2011). Plaintiff’s Bivens claim is subject to dismissal under this Court’s screening obligation. To the extent Plaintiff’s claim against Detective Pratico is based solely on Pratico’s grand jury testimony, Detective Pratico enjoys absolute immunity even if his testimony was false. The Supreme Court has held, “a grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony.” Rehberg v. Paulk, 566 U.S. 356, 369 (2012), aff’g 611 F. 3d 828 (11th Cir. 2010). Accord Jones v. Cannon, 174 F. 3d 1271, 1281 (11th Cir. 1999) (“Police officers enjoy the same absolute immunity as lay witnesses for their testimony at trial or in front of the grand jury.”) (internal citation omitted); Kelly v. Curtis, 21 F. 3d 1544, 1553 (11th Cir. 1994) (emphasizing the Eleventh Circuit “has held that testimony before a grand jury is protected by absolute immunity”).

On September 21, 2016, the day Detective Pratico testified, the grand jury returned an indictment against Plaintiff charging him with possession of a firearm that affected interstate commerce after having been convicted of a felony. See Doc. 1, Case No. 3:16- cr-139-J-32JRK. Also on September 21, 2016, an Assistant United States Attorney filed a “motion for capias” based upon the return of the indictment. See Doc. 2, Case No. 3:16-cr-139-J-32JRK. Even though Detective Pratico’s grand jury testimony supported the motion for Plaintiff’s arrest, Detective Pratico still enjoys absolute immunity. The Eleventh Circuit has “expressly rejected[ed] carving out an exception to absolute immunity for grand jury testimony, even if false and even if [the detective] were construed to be a complaining witness.” Rehberg, 611 F. 3d at 839-40 (quoting and altering Jones, 174 F. 3d at 1287 n.10). Finally, Plaintiff’s conviction has not been invalidated.‘ As such, he cannot maintain a civil rights action against Detective Pratico challenging his conviction where a judgment in his favor “would necessarily imply the invalidity of his conviction.” See Heck v. Humphrey, 512 U.S. 477, 487 (1994). Accordingly, it is ORDERED: 1. This case is DISMISSED without prejudice under 28 U.S.C. 1915 (2) (B).

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 3rd day of December, 2019. 4 Do af J. DAVIS United States District Judge Jax-6 Cc: Raimundo A. Hogan 4 The Eleventh Circuit Court of Appeals affirmed Plaintiff’s conviction despite his argument that there was a discrepancy in the gun’s serial number, which the court noted was “essentially a reprise of [his] trial defense.” See United States v. Hogan, 778 F. App’x 642, 645 (11th Cir. 2019). Additionally, Plaintiff has filed a motion to vacate under 28 U.S.C. § 2255, asserting in part that his counsel was ineffective for failing to call Detective Pratico as a witness to testify about the discrepancy in the gun’s serial number. See Doc. 102, Case No. 3:16-cr-139-J-32JRK.