Guy v. Channell et al

Filing 4

ORDER DISMISSING CASE without prejudice. The Court certifies that an ifp appeal would not be taken in good faith. The dismissal of this action constitutes a "strike". Signed by Judge Kristine G. Baker on 9/10/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION BENNIE DAVID GUY, ADC #72720 v. PLAINTIFF No. 4:12-cv-481 KGB LISA CALHOUN CHANNELL, DNA Examiner, Arkansas State Crime Lab, et al. DEFENDANTS ORDER OF DISMISSAL I. Introduction Plaintiff, Bennie David Guy, is a prisoner in the Cummins Unit of the Arkansas Department of Correction. He has recently filed a pro se § 1983 Complaint alleging that defendants violated his constitutional rights. II. Discussion The Prison Litigation Reform Act requires federal courts to screen prisoner complaints seekingreliefagainstagovernmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek ' ! monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). When making this determination, the Court must accept the ~ruth ofthe factual allegations contained in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2lp09); Reynolds v. Dorm ire, 636 F .3d 976, 979 I (8th Cir. 2011). In 1996, plaintiff pled guilty to related rape charges in the Crittenden and St. Francis County Circuit Courts. Over the years, plaintiff has filed at least four unsuccessful federal habeas petitions and § 1983 actions challenging those convictions. Se'r Guy v. Norris, 5 :03CV00466 JMM; Guy v. Parkman,2:10CV00066 SWW; Guyv. Hobbs, 5:11CV00233 JMM; Guyv. Laxton, 3:11CV00084 DPM. In this § 1983 action, plaintiff seeks damages from defendants Lisa Calhoun Channell and Kermit Channell for allegedly violating his substantive due process rights by falsifying DNA evidence that was used against him in the Crittenden County rape case. Plaintiff knows, from an earlier§ 1983 action, that he must first have his Crittenden County rape convictions reversed, questioned, or called intq doubt by the highest state court or a federal habeas court before he can seek damages under§ 198~. 1 Muhammadv. Close, 540 U.S. 749,750-51 i (2004); Heckv. Humphrey, 512 U.S. 477,486-87 (19~4). Because he has failed to obtain such relief, he cannot proceed with this § 1983 action. III. Conclusion IT IS THEREFORE ORDERED THAT this cc:).se is DISMISSED, WITHOUT PREJUDICE. The Court further CERTIFIES, pursuant to 28 U.S.C.~~ 1915(a)(3), that an in forma pauperis appeal would not be taken in good faith. The dismissal of tJis action constitutes a "STRIKE," as defined by 28 U.S.C. § 1915(a)(3). I SO ORDERED this I Qili day of September, 2~ 12. la:?i\1·~ N u.~UA./ Kristine G. Baker pnited States District Judge 1 In Guy v. Laxton, 3:11CV00084 DPM, plltiff alleged that his attorney and a county investigator entered into a conspiracy to withhold exc*lpatory DNA evidence. The Court dismissed that § 1983 claim, without prejudice, because plaintiffs Crittenden County rape conviction had not been reversed, questioned or called into doubt by the ~ighest state court or federal habeas court. The Eighth Circuit affirmed that ruling. Guy v. Laxton, i 2011 WL 511953 7 (8th Cir. Oct. 28, 2011) (unpublished decision). -2-

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