Washington v. Holt (INMATE1)

Filing 4

RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice pursuant to the directives of 28 USC 1915(e)(2)(B)(ii). Objections to R&R due by 4/27/2006. Signed by Judge Charles S. Coody on 4/14/06. (sl, )

Washington v. Holt (INMATE1)

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Case 2:06-cv-00322-WKW-CSC

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Filed 04/14/2006

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E R S K IN E E. WASHINGTON, #109856, Plaintiff, v. ) ) ) ) ) C IV IL ACTION NO. 2:06-CV-322-WKW ) [W O ] ) ) ) )

K A T H Y HOLT, Defendant.

RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Erskine E. Washington ["Washington"], a state in m a te , challenges the calculation of his release date. Specifically, Washington complains th a t the defendant has taken "a 2 year balance from an [expired] circuit court case (C.C. 740 3 0 8 4 4 ) and . . . add[ed] the 2 years to my present [twenty-five] year sentence" imposed in 1 9 8 2 for second degree theft of property. Plaintiff's Complaint at 4-5. Washington argues th a t this error has resulted in an erroneous release date. He requests that this court "[r]emove th e additional time from [his] sentence and make [his end of sentence] date 7-26-07 instead o f 12-9-09." Id. at 7-8. Upon review of the complaint, the court concludes that dismissal of this case prior to serv ice of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(ii).1

1. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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D IS C U S S IO N It is clear to this court that success on Washington's challenge to the calculation of h is release date would necessarily impact the duration of his incarceration. Consequently, th e claims presented by the plaintiff are not cognizable in a section 1983 action at this time. E d w a r d s v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a claim for damages challenging the legality of a prisoner's confinement is not cognizable in a 42 U.S.C. § 1983 action "unless and until the . . . sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas c o rp u s " and complaints containing such claims must therefore be dismissed. 512 U.S. at 4 8 3 -4 8 9 . The Court emphasized that "habeas corpus is the exclusive remedy for a state p ris o n e r who challenges the fact or duration of his confinement and seeks immediate or s p e e d ie r release, even though such a claim may come within the literal terms of § 1983" and, b a se d on the foregoing, concluded that Heck's complaint was due to be dismissed as no c a u s e of action existed under section 1983. Id. at 481. In so doing, the Court rejected the lo w e r court's reasoning that a section 1983 action should be construed as a habeas corpus a c ti o n . In Balisok, the Court further determined that a prisoner's "claim for [both] declaratory r e lie f and money damages" that necessarily implies the invalidity of the action taken against th e prisoner "is not cognizable under § 1983" unless such action has previously been o v e rtu rn e d . 520 U.S. at 648. Moreover, the Court determined that this is true not only when a prisoner challenges the judgment as a substantive matter but also when "the nature of the 2

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c h a lle n g e to the procedures could be such as necessarily to imply the invalidity of the ju d g m e n t." Id. at 645. The Court "reemphasize[d] . . . that a claim either is cognizable under § 1983 and should immediately go forward, or is not cognizable and should be dismissed." Id . at 649. In the present complaint, Washington maintains that his release date has been im p ro p e rly calculated because the defendant added two years of a "dead" sentence to the tw e n ty-f iv e year sentence on which he is now incarcerated. Plaintiff's Complaint at 5. This c la im , if established, would affect the duration of Washington's confinement. The pleadings b e f o re the court indicate that the calculation of Washington's release date has not been in v a lid a te d in an appropriate proceeding. Consequently, the instant collateral attack on such a c tio n is prohibited by Heck and Balisok, and Washington's claims are therefore due to be d is m is s e d as he has no present cause of action under 42 U.S.C. § 1983.2 C O N C L U SIO N A c c o r d in g ly, it is the RECOMMENDATION of the Magistrate Judge that this case b e dismissed without prejudice pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(ii). It is further ORDERED that on or before April 27, 2006 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the

2. The plaintiff is advised that if he seeks to challenge the duration of his confinement based on the claim set forth in the instant complaint he should do so by filing a petition for habeas corpus relief under 28 U.S.C. § 2241. Such a petition must be filed in the district court in which the inmate is incarcerated. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); United States v. Plain, 748 F.2d 620, 621 (11th Cir. 1984); Blau v. United States, 566 F.2d 526, 527 (5th Cir. 1978).

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M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ) (adopting as binding precedent in the Eleventh Circuit all of the decisions of the f o r m e r Fifth Circuit Court of Appeals which were handed down prior to the close of business o n September 30, 1981). D o n e this 14 th day of April, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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