FRAGHER v. GWINNETT COUNTY DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ANDRE FRAGHER, 	:
:
Plaintiff, 	:
: 	NO. 5:25-cv-000510-TES-CHW
VS. 	:
:
GWINNETT COUNTY 	:
DEPARTMENT OF 	:
CORRECTIONS, 	:
:
Defendant. 	:
________________________________ 	:
ORDER
Plaintiff Andre Fragher, an inmate currently confined in the Gwinnett County Prison
in Lawrenceville, Georgia, filed a document in the United States District Court for the
Northern District of Georgia, in which he states that he “is deeply innocent” of the crime
for which he was charged and convicted in Washington County, Georgia. 	ECF No. 1 at
1. 	Plaintiff states he is “seeking justice.” 	Id. at 2. 	The United States District Court for
the Northern District of Georgia has noted that it is not clear whether Plaintiff seeks to file
a habeas petition under 28 U.S.C. § 2254 or a complaint for violation of civil rights
pursuant to 42 U.S.C. § 1983. 	ECF No. 2 at 1 n.1. 	That court determined that either
action should have been filed in the United States District Court for the Middle District of
Georgia and transferred the action to this Court. 	ECF No. 2, ECF No. 3.
Plaintiff must clarify what type of action Plaintiff seeks to file. 	As a general rule,
“any challenge to the fact or duration of a prisoner’s confinement is properly treated as a
Case 5:25-cv-00510-TES-CHW Document 5 Filed 12/04/25 Page 1 of 5

2
habeas corpus matter, whereas challenges to conditions of confinement may proceed under
[42 U.S.C.] § 1983 . . . .” 	McKinnis v. Mosely, 693 F.2d 1054, 1057 (11th Cir. 1982) (per
curiam) (quoting Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979)). 	“Federal habeas
corpus relief is appropriate when a petitioner alleges that his custody itself is illegal” and
seeks release from prison or a shortened prison sentence. 	Jones v. Augusta State Med.
Prison, No. CV 313-012, 2013 WL 1736782, at *1 (S.D. Ga. Mar. 21, 2013) (citing Preiser
v. Rodriguez, 411 U.S. 475, 484 (1973)). 	Conversely, when a prisoner seeks damages
because a state actor “deprived [him] of a right secured by the Constitution or laws of the
United States,” that cause of action is a § 1983. 	Focus on the Fam. v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003) (citing American Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49–50 (1999)); see also Hale v. Tallapoosa Cnty., 50 F.3d 1579,
1582 (11th Cir. 1995). 	Release from prison is not available as a remedy in a § 1983 action.
Preiser, 411 U.S. at 489. 	Monetary damages are available in a § 1983 action but not in a
habeas action. 	Id. at 493, 500.
Accordingly, if Plaintiff is challenging the fact or validity of his confinement at
Gwinnett County Prison and seeks release, the proper cause of action is a § 2254 habeas
petition. 	Plaintiff is advised, however, that prior to seeking federal habeas corpus relief,
he must exhaust state remedies. 	See 28 U.S.C. § 2254(b); Skinner v. Wiley, 355 F.3d 1293,
1295 (11th Cir. 2004) (holding that exhaustion is required “in all habeas cases”). 	To
exhaust, Plaintiff must “fairly present[ ]” every issue raised in the federal habeas petition
to the state's highest court, either on direct appeal or through other collateral means for
Case 5:25-cv-00510-TES-CHW Document 5 Filed 12/04/25 Page 2 of 5

3
review. 	Castille v. Peoples, 489 U.S. 346, 351 (1989); O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (finding that exhaustion requires that “state prisoners . . . 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.”). 	Thus, Plaintiff will be barred
from receiving habeas relief in this Court until he has pursued review of his conviction in
the appropriate state superior court and appellate court.
If Plaintiff instead seeks to complain about the events surrounding his arrest and
conviction, or about the conditions of his confinement, he should recast his complaint on
the Court’s standard § 1983 form. 	As stated above, release from prison is not a remedy
available in a § 1983 action. 	Plaintiff is further advised that this Court may be barred from
considering a § 1983 claim alleging that the criminal proceedings underlying his present
imprisonment were somehow wrongful. 	The United States Supreme Court held that
in order to recover damages for 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 determination, or called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.
Heck, 512 U.S. at 486-487. 	Thus, to the extent that Plaintiff alleges his conviction was
unlawful and he is currently falsely imprisoned, the Court would not be able to award
damages unless and until his conviction has been reversed or otherwise declared invalid.
If, after considering all the above, Plaintiff still wishes to pursue a federal action at
this time, he must recast his complaint on the proper form. 	If Plaintiff is challenging his
Case 5:25-cv-00510-TES-CHW Document 5 Filed 12/04/25 Page 3 of 5

4
state court conviction and seeks release from prison, he must recast his allegations on the
Court’s standard § 2254 petition and specifically include all previous challenges he has
made 	to 	his 	conviction 	in 	the 	state 	superior 	and/or 	appellate 	courts 	of 	Georgia.
Alternatively, if Plaintiff is complaining about the conditions of his confinement and seeks
monetary compensation, he should recast his allegations on the Court’s standard § 1983
form.
Plaintiff shall have FOURTEEN (14) DAYS from the date of this Order to choose
the federal civil action he intends to pursue and to recast his complaint on the appropriate
form as instructed. 	The recast complaint shall supersede (take the place of) his initial
pleadings and this Court will not look back at his prior pleadings to determine whether
Plaintiff has an actionable claim.
In addition, Plaintiff did not pay a filing fee upon initiating this civil action. 	Thus,
Plaintiff shall have FOURTEEN (14) DAYS from the date shown on this Order to pay the
required filing fee for the type of claim he submits. 	The filing fee for a habeas corpus
petition brought pursuant to § 2254 is $5.00; the filing fee for a § 1983 case is $405.00. 	If
Plaintiff is indigent and unable to prepay the full amount of the filing fee, he may request
leave to proceed in forma pauperis.1
1 For § 1983 actions, a prisoner seeking leave to proceed in forma pauperis must submit
(1) an affidavit in support of his claim of indigence and (2) “a certified copy of [his] trust
fund account statement (or institutional equivalent) . . . for the 6-month period immediately
preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(1)-(2). 	For § 2254 petitions,
a prisoner seeking leave to proceed in forma pauperis must submit an affidavit in support
of his claim of indigence and “a certificate from the warden or other appropriate officer . .
. showing the amount of money or security that the [prisoner] has in any account in the
institution.” 	Habeas Corpus R. 3(a)(2). 	Plaintiff should be aware that if he files a § 1983
Case 5:25-cv-00510-TES-CHW Document 5 Filed 12/04/25 Page 4 of 5

5
CONCLUSION
Plaintiff has failed to submit a proper complaint before the Court and to pay the
filing fee. 	Plaintiff shall have FOURTEEN (14) DAYS from the date of this Order to (1)
recast his complaint on the appropriate form for the type of federal civil action he intends
to pursue as instructed, and (2) pay the corresponding filing fee for that civil action, or if
indigent, file a motion for leave to proceed in forma pauperis.
Failure to fully and timely comply with this Order will result in the dismissal of this
civil action. 	While this action is pending, Plaintiff must immediately inform the Court in
writing of any change in his mailing address. 	Failure to do so may result in dismissal of
this action.
The Clerk of Court is DIRECTED to forward to Plaintiff a copy of the § 2254 and
§ 1983 standard forms as well as a copy of the standard application to proceed without
prepayment of fees and account certification form for Plaintiff’s use in complying with this
Court Order.
SO ORDERED AND DIRECTED, this 4th day of December, 2025.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
action, he will be responsible for the full payment of the filing fee regardless of whether
the Court allows him to proceed without prepayment of the fee. Even if Plaintiff’s § 1983
action is summarily dismissed, he will owe the full filing fee, and money will be deducted
from Plaintiff’s prisoner trust fund account in accordance with the Prison Litigation
Reform Act. 	28 U.S.C. § 1915(b).
Case 5:25-cv-00510-TES-CHW Document 5 Filed 12/04/25 Page 5 of 5