Walker v. Bryant et al (INMATE 2)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Earnest Lee Walker, Jr. that: 1) Plaintiff's challenge to the revocation of his probation be dismissed without prejudice in accordance with the directives of 28 U.S.C. 1915(e)(2)(B)(ii); and 2) This case be dismissed prior to service of process; Objections to R&R due by 3/21/2005. Signed by Judge Vanzetta P. McPherson on 3/2/05. (vmc, )

Walker v. Bryant et al (INMATE 2)

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Case 2:05-cv-00168-MEF-VPM

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Filed 03/02/2005

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IN THE UNITED STATES DISTRICT COURT F OR THE MIDDLE DISTRICT OF ALABAMA N O R T H E RN DIVISION _______________________________ E A R N E S T LEE WALKER, JR. Plaintiff, v. K E L V IN L. BRYANT, et al., Defendants. _______________________________ * * * CIVIL ACTION NO. 2:05-CV-168-F * *

R E C O M M E N D A TI O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Plaintiff, an inmate currently incarcerated in the Mo ntgom ery County Detention Facility, challenges the revocation of his probation. Named a s defendants are Kelvin Bryant, the Department of Human Resources, Judge Johnny H a r d w i c k , and Gary Stevens, Esq. Plaintiff seeks injunctive relief. Upon review of the a l l eg a t i o n s contained in the instant complaint, the court concludes that this case is due to be d i s m i ss e d prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e )(2)( B )(ii) & (iii).1 FACTS A c c o r d i n g to Plaintiff's complaint, he was on probation for thirteen months during w h i c h time he no problems and paid of his fines. In July 2004 Plaintiff's probation was

These subsections provide that the court shall dismiss an inmate's in forma pauperis complaint at any time if it determines that the action presents grounds that fail to state a claim on which relief may be granted or seeks damages from defendants who are immune from such relief.
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r e v o k e d after his wife filed assault charges against him. Plaintiff essentially contends that t h e basis for the assault charges were untrue and files this action seeking to challenge the validity of his probation revocation. (Doc. No. 1.)

DISCUSSION Plain tiff complains that his probation was improperly revoked by Defendants. This claim provides no basis for relief at this time. Heck v. Humphrey, 512 U.S. 477 (1994); E d w a r d s v. Balisok, 520 U.S. 641, 646 (1997). In Heck, the Supreme Court held that claims for damages arising from challenges to t h e legality of a prisoner's confinement are not cognizable in a 42 U.S.C. § 1983 action " u n l e s s and until the conviction or sentence is reversed, expunged, invalidated, or impugned b y the grant of a writ of habeas corpus" and complaints containing such claims must therefore be dismissed. 512 U.S. at 483-489. The Court emphasized that "habeas corpus is th e exclusive remedy for a sate prisoner who challenges the fact or duration of his c o n f i n e m e n t and seeks immediate or speedier release, even though such a claim may come with in the literal terms of § 1983" and, based on the foregoing, concluded that Heck's c o m p l a i n t was due to be dismissed as no cause of action existed under section 1983. Id. at 481. In Balisok, the Court further determined that a prisoner's "claim for [both] declaratory r e l ie f and money damages" based on an alleged denial of due process that necessarily implies t h e invalidity of the action taken against the prisoner "is not cognizable under § 1983" unless 2

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s u c h action has previously been overturned. 520 U.S. at 648.

Moreover, the Court

d e t e r m in e d that this is true not only when a prisoner challenges the judgment as a substantive m a t t e r but also when "the nature of the challenge to the procedures could be such as nece ssarily to imply the invalidity of the judgment." Id. at 645. The Court "remphasize[d] . . . that a claim either is cognizable under § 1983 and should immediately go forward, or is n o t cognizable and should be dismissed." Id. at 649. The principles espoused in Heck and Balisok apply to revocations of probation and r e v o c a ti o ns and denial of parole. Jackson v. Vannoy, 49 F.3d 175, 177 (5 th Cir. 1995) ( r e v o c a ti o n of probation); Butterfield v. Bail, 120 F.3d 1023 (9 th Cir. 1997) (denial of p a role); Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5 th Cir.1995) ( r e v o c a ti o n of parole). Plaintiff has not shown that the probation revocation decision he c h a l le n g e s has been invalidated in an appropriate civil action. Consequently, the instant c o l l at e r a l attack on this adverse action is prohibited by Heck and Balisok. Based on the f o r e g o in g , the court concludes that Plaintiff presently has no cause of action under § 1983 with respect to a claim challenging the validity of his probation revocation. This claim, t h e r e fo r e , is due to be dismissed in accordance with the directives of 28 U.S.C. § 191 5(e )(2)( B)( ii). CONCLUSION Ac cord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's challenge to the revocation of his probation be dismissed without p r e j u d ic e in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(ii); and 3

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2. This case be dismissed prior to service of process. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a t i o n within a period of 13 days from the date of mailing or transmittal to them. A n y objections filed must specifically identify the findings in the Magistrate Judge's R e c o m m e n d a t i o n objected to. Frivolous, conclusive or general objections will not be c o n s i d e re d by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failu re to file written objections to the proposed findings and recommendations in the M agistrate Judge's report shall bar the party from a de novo determination by the District Cou rt of issues covered in the report and shall bar the party from attacking on appeal factual f i n d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r i c h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p t e m b e r 30, 1981. D o n e this 2 n d day of March, 2005.

/ s / Vanzetta Penn McPherson U N I TE D STATES MAGISTRATE JUDGE

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