Walker v. Bryant et al (INMATE2)

Filing 3

REPORT AND RECOMMENDATION re 1 Inmate 1983 Complaint filed by Earnest Lee Walker, Jr.; that plaintiff's complaint be dismissed without prejudice in accordance with the directives of 28 USC 1915; that this case be dismissed prior to service of process Objections to R&R due by 5/5/2005. Signed by Judge Vanzetta P. McPherson on 4/22/05. (ajr, )

Walker v. Bryant et al (INMATE2)

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Case 2:05-cv-00346-MEF-VPM

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Filed 04/22/2005

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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 BRYANT, et al., Defendants. _______________________________ * * * CIVIL ACTION NO. 2:05-CV-346-F WO * *

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 matters related to the revocation of his p r o b a t io n . He further alleges that he has not received credit for the actual amount of time

he was in custody prior to the revocation of his probation. Plaintiff seeks injunctive relief.
N a m e d as defendants are Kelvin Bryant, the Department of Human Resources, Judge Johnny H a r d w i c k , and A.F. Boykins. Upon review of the allegations contained in the instant com plaint, the court concludes that this case is due to be dismissed prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). 1

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A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint

s c r e e n e d in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires t h e court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is f r i v o l o u s , malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant w h o is imm u n e from such relief. 28 U . S . C . § 1915(e)(2)(B)(i)-(iii).

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D I SC U S S I O N

It is clear to this court that success on Plaintiff's challenges to the revocation of his probation and the calculation of his release date would necessarily impact the fact or duration of his present incarceration. Consequently, the claims presented by Plaintiff are not cognizable in a § 1983 action at this time. Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994).
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 t h 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 s u c h action has previously been overturned. 520 U.S. at 648. Moreover, the Court

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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.

In the present complaint, Plaintiff seeks to challenge the validity of the revocation of his probation and also argues that he has not been given appropriate credit for time served in custody prior to the revocation of his probation. These claims, if established, would necessarily imply the invalidity of Plaintiff's present confinement and/or effect the duration of such confinement.2 It is clear from the pleadings before the court that neither the decision to revoke Plaintiff's probation nor the calculation of his release date has been invalidated in an appropriate proceeding. Consequently, the instant collateral attack on such actions is prohibited by Heck and Balisok, and Plaintiff's claims are, therefore, due to be dismissed as he presently has no cause of action under 42 U.S.C. § 1983.3

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T h e principles espoused in Heck and Balisok apply to revocations of probation and revocations and

d e n i a l of parole. Jackson v. Vannoy, 49 F.3d 175, 177 (5 th Cir. 1995) (revocation of probation); Butterfield v . Bail, 120 F.3d 1023 (9 th Cir. 1997 ) (denial of parole); Littles v. Boa r d of Pardons and P a r o l e s Div., 68 F . 3 d 1 2 2 , 123 (5 th Cir.1995 ) (revo c a t i o n of parole).
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P l a in t i ff is advised that if he seeks to challenge the validity or duration of his confinement based on

t h e claims set forth in the instant complaint he may do so by filing a petition for habeas corpus relief under 2 8 U.S.C. § 2241. Such a petition must be filed in the district court in which the inmate is incarcerated. B r a d e n v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (197 3 ) ; United States v. Plain, 748 F.2d 620, 6 2 1 (11 th Cir. 1984 ) ; Blau v. United States, 566 F.2d 526, 527 (5 th Cir. 1978 ) .

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C O N C L U S IO N Ac cord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's complaint be dismissed without prejudice in accordance with the d i r e c ti v e s of 28 U.S.C. § 1915(e)(2)(B)(ii); and 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 on or before May 5, 2005. Any objections filed must specifically identify t h e findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised t h a t 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.

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D o n e this 22n d day of April, 2005.

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

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