Lomax v. Hoffman et al
Filing
11
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/23/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03296-BNB
ARTHUR JAMES LOMAX,
Plaintiff,
v.
MORRIS B. HOFFMAN, the People, and
RICK RAEMISCH, Executive Director of DOC,
Defendants.
ORDER OF DISMISSAL
Plaintiff, Arthur James Lomax, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Centennial Correctional Facility in Cañon City,
Colorado. Mr. Lomax has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42
U.S.C. § 1983 claiming that his rights under the United States Constitution have been
violated.
The Court must construe the Prisoner Complaint liberally because Mr. Lomax is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id. For the reasons stated below,
the Court will dismiss the action.
Mr. Lomax contends in the Prisoner Complaint that he was sentenced illegally in
the Denver District Court in December 2006 to an indeterminate term of six years to life
in prison and ten years to life on parole. Mr. Lomax specifically contends that the state
court sentencing judge abused his discretion and went beyond his authority under
Colorado law by imposing a sentence that is excessive, void, and disproportionate to
the nature of his crime. According to Mr. Lomax, the maximum prison term to which he
could have been sentenced under Colorado law is six years and he should have been
released in December 2012. The named Defendants in the Prisoner Complaint are the
sentencing judge and the executive director of the DOC. As relief Mr. Lomax asks that
his sentence be vacated, that he be released from prison immediately, and that he be
awarded damages.
Mr. Lomax may not pursue his claims in this action pursuant to 42 U.S.C. § 1983
to have his sentence vacated or to be released from prison because his sole federal
remedy is a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 504 (1973)
(holding that “when a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus”). Mr. Lomax previously filed a habeas corpus action
in the District of Colorado challenging the validity of his state court criminal conviction
that was dismissed as untimely. See Lomax v. Davis, No. 11-cv-03034-LTB (D. Colo.),
appeal dismissed, 484 F. App’x 206 (10th Cir.), cert. denied, 133 S. Ct. 480 (2012).
Therefore, the Court lacks jurisdiction to consider the merits of any claims seeking
2
habeas corpus relief. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam)
(noting that district courts lack jurisdiction to consider the merits of claims asserted in a
second or successive § 2254 application absent prior authorization from the appropriate
court of appeals pursuant to 28 U.S.C. § 2244(b)(3)).
Mr. Lomax’s claims for damages, which may be asserted in a § 1983 action, will
be dismissed because those claims are barred by the rule in Heck v. Humphrey, 512
U.S. 477 (1994). Pursuant to Heck, if a judgment for damages necessarily would imply
the invalidity of a criminal conviction or sentence, the action does not arise until the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by the
issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87. In short, a civil rights
action filed by a state prisoner “is barred (absent prior invalidation) – no matter the relief
sought (damages or equitable relief), no matter the target of the prisoner’s suit (state
conduct leading to conviction or internal prison proceedings) – if success in that action
would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson
v. Dotson, 544 U.S. 74, 81-82 (2005).
It is apparent that Mr. Lomax’s claims in the Prisoner Complaint implicate the
validity of the sentence he is serving. It also is apparent that Mr. Lomax has not
invalidated the validity of that sentence. Therefore, the Court finds that Mr. Lomax’s
claims for damages are barred by the rule in Heck and must be dismissed. The
dismissal will be without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996).
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
3
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice because the habeas corpus claims may not be raised in this action pursuant
to 42 U.S.C. § 1983 and the claims for damages are barred by the rule in Heck. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 23rd day of
January
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?