Nelms v. Alabama Board of Pardons & Paroles (INMATE2)

Filing 4

RECOMMENDATION of the Magistrate Judge that: (1) plaintiff's complaint against defendant Alabama Board of Pardons and Paroles be dismissed with prejudice; (2) plaintiff's challenge to the revocation of his parole be dismissed without prejudice; (3) the complaint be dismissed prior to service of process. Objections to R&R due by 8/30/2009. Signed by Honorable Wallace Capel, Jr on 8/17/09. (sl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ G R E G O R Y LAMAR NELMS P l a in tif f , v. T H E BOARD OF PARDONS AND PAROLE COURT HEARINGS, D e f e n d a n t. ____________________________ * * * * * 2:09-CV-750-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P lain tiff , an inmate incarcerated at the Lee County Detention Center located in O p e lik a , Alabama, files this 42 U.S.C. 1983 complaint alleging that rights, privileges, or im m u n itie s afforded him under the Constitution or laws of the United States are being a b rid g e d as a result of his current detention which he maintains is unlawful. In naming "the B o a rd of Pardons and Parole Court Hearings," the court understands Plaintiff to name as the d e f e n d a n t the Alabama Board of Pardons and Paroles. The court has carefully reviewed the allegations contained in Plaintiff's complaint. From that review, the court concludes that dismissal of the complaint prior to service of p roc ess is appropriate under 28 U.S.C. 1915(e)(2)(B).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 1 I . DISCUSSION A . The Alabama Board of Pardons and Paroles T h e Alabama Board of Pardons and Paroles is not subject to suit or liability under 1 9 8 3 . The Eleventh Amendment bars suit directly against a state or its agencies, regardless o f the nature of relief sought. Papasan v. Allain, 478 U.S. 265 (1986); Pennhurst State S c h o o l & Hosp. v. Halderman, 465 U.S. 89 (1984). Thus, Plaintiff's claims against the A la b a m a Board of Pardons and Paroles are "based on an indisputably meritless legal theory," a n d are, therefore, subject to dismissal as frivolous under 28 U.S.C. 1915(e)(2)(B)(I). See N eitz k e v. Williams, 490 U.S. 319, 327 (1989).2 B . The Challenge to Plaintiff's Detention P lain tiff complains that there is no basis for his current detention in the Lee County D e te n tio n Facility. Specifically, Plaintiff asserts that he was sent back to prison for violating h i s parole but maintains that State failed to prove the charge against him and it was nolle p ro s s e d . As relief, Plaintiff seeks a proper and legal parole hearing and reinstatement on p a ro le . (See Doc. No. 1 and attachments.) Plaintiff's complaint that his parole was improperly revoked provides no basis for re lie f at this time. Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v. Balisok, 520 U.S. 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). Although Neitzke interpreted the provisions of 28 U.S.C. 1915(d), the predecessor to 1915(e)(2), the analysis contained therein remains applicable to the directives contained in the present statute. 2 2 6 4 1 , 646 (1997). In Heck, the Supreme Court held that claims for damages arising from c h a lle n g e s to the legality of a prisoner's confinement are not cognizable in a 42 U.S.C. 1 9 8 3 action "unless and until the conviction or sentence is reversed, expunged, invalidated, o r impugned by the grant of a writ of habeas corpus" and complaints containing such claims m u s t therefore be dismissed. 512 U.S. at 483-489. The Court emphasized that "habeas c o rp u s is the exclusive remedy for a state prisoner who challenges the fact or duration of his c o n f in e m e n t and seeks immediate or speedier release, even though such a claim may come w i th in the literal terms of 1983" and, based on the foregoing, concluded that Heck's c o m p la in t was due to be dismissed as no cause of action existed under section 1983. Id. at 4 8 1 . See Eutzy v. Tesar, 880 F.2d 1010, 1011 (8 th Cir. 1989) (when the effect of granting e q u ita b le relief under the civil rights statute would be to substitute a 1983 action for a f e d era l writ of habeas corpus challenging the basis for ongoing detention or for a petition p u rs u a n t to 2254 to attack a state court conviction, a prisoner fails to state a claim under 1983). In Balisok, the Court further determined that a prisoner's "claim for [both] declaratory re lie f and money damages" based on an alleged denial of due process that necessarily implies th 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 d e te rm in e d that this is true not only when a prisoner challenges the judgment as a substantive m a tte r but also when "the nature of the challenge to the procedures could be such as 3 n e c es s a rily 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 and denials of p a ro le . Butterfield v. Bail, 120 F.3d 1023 (9 th Cir. 1997) (denial of parole); Littles v. Board o f Pardons and Paroles Div., 68 F.3d 122, 123 (5 th Cir.1995) (revocation of parole); Schafer v . Moore, 46 F.3d 43, 44-45 (8 th Cir.1995) (denial of parole). Plaintiff has not shown that th e parole revocation decision he challenges has been invalidated in an appropriate civil a c tio n . Consequently, the instant collateral attack on this adverse action by the Alabama B o a rd of Pardons and Paroles is prohibited by Heck and Balisok. Based on the foregoing, th e court concludes that Plaintiff presently has no cause of action under 1983 with respect to a claim challenging the validity of his parole revocation. This claim, therefore, is due to b e dismissed in accordance with the directives of 28 U.S.C. 1915(e)(2)(B)(ii). In light of the foregoing, the court concludes that Plaintiff's complaint is due to be d is m is s e d without prejudice in accordance with the provisions of 28 U.S.C. 1 9 1 5 (e)(2)(B )(i) & (ii). I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's complaint against Defendant Alabama Board of Pardons and Paroles be D IS M IS S E D with prejudice under 28 U.S.C. 1915(e)(2)(B)(i); 4 2 . Plaintiff's challenge to the revocation of his parole be DISMISSED without p re ju d ic e in accordance with the directives of 28 U.S.C. 1915(e)(2)(B)(ii); and 3. The complaint 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 tio n on or before August 30th, 2009. Any objections filed must specifically id e n t if y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr 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 ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 17 th day of August 2009. 5 /s / Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE 6

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