Russ v. Haggan et al

Filing 7

INITIAL REVIEW ORDER DISMISSING 1 Complaint filed by Derek Avery Russ Signed by Judge Jeffrey A. Meyer on 3/3/2015.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DEREK AVERY RUSS,
Plaintiff,
v.
JOSEPH HAGGAN and SCOTT
SEMPLE,
Defendants.

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CASE NO. 3:15-cv-00049 (JAM)

ORDER DISMISSING CASE
PURSUANT TO 28 U.S.C. § 1915A
Plaintiff Derek Avery Russ is currently incarcerated at the Osborn Correctional
Institution in Somers, Connecticut. He has filed a complaint pro se and in forma pauperis under
federal civil rights laws (42 U.S.C. §§ 1981, 1983 and 1988) against the Connecticut Director of
Parole Joseph Haggan and Commissioner of Correction Scott Semple. Although the precise
nature of plaintiff’s allegations of defendants’ wrongdoing are somewhat difficult to understand,
I conclude that plaintiff does not plausibly set forth a claim for relief under federal civil rights
laws and that any claim for relief he may now have stemming from his arrest and detention must
proceed instead by way of a petition for writ of habeas corpus before the Connecticut state
courts.
BACKGROUND
As best as I can understand the pro se complaint, it alleges in substance the following
facts that are taken as true for purposes of this initial review. In 1989, plaintiff was on parole
when he “escaped” from Connecticut. Although defendants were allegedly notified that plaintiff
was in Florida in 1990, they took no action to apprehend plaintiff for his 1989 escape until 2013,
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at which point they issued “a falsified person search message over the Connecticut on-line law
enforcement communication teleprocess and the Federal National Crime Information Center
(“N.C.I.C.”).” Doc. #1 at 10. Defendants allegedly extradited plaintiff from Texas to Connecticut
without a probable cause hearing and using a falsified arrest warrant and falsified extradition
warrant. In Connecticut, defendants then readjusted his “time sheet.” As a result, plaintiff
remains confined without a court date for the alleged escape charge that formed the basis for his
extradition. After he was in custody in Connecticut for seven months, plaintiff asked defendants
to produce a warrant. Instead, they issued him a disciplinary report charging him with escape and
revised the Department of Corrections Administrative Directive to allow issuance of a delayed
disciplinary report.1 Plaintiff seeks compensatory damages in the amount of $2.9 million, and
punitive damages also in the amount of $2.9 million.
DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the Court must review prisoner civil complaints and
dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon
which relief may be granted, or that seeks monetary relief from a defendant who is immune from
such relief. The Court must accept as true all factual matters alleged in a complaint, although a
complaint may not survive unless its factual recitations state a claim to relief that is plausible on
its face. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014) (same). Nevertheless, it is well-established that “[p]ro se
complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they

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The copy of the amended directive submitted by plaintiff indicates that the directive was amended in
November 2010, three years before plaintiff’s return to Connecticut. See Doc. #1 at 18.

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suggest.’” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d
90, 101–02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).
Even in light of the liberal pleadings rules that are afforded a pro se complaint, I
conclude that this action is subject to dismissal. In his complaint, plaintiff refers to an adjustment
to his “time sheet.” I assume that by this reference plaintiff challenges the calculation of time he
must serve on his original sentence and the lawfulness of his continued detention. Any challenge
to a conviction or the duration of a sentence must be made by a petition for writ of habeas
corpus, rather than by means of an action under the civil rights laws such as § 1983. See Nelson
v. Campbell, 541 U.S. 637, 643 (2004) (“[Section] 1983 must yield to the more specific federal
habeas statute, with its attendant procedural and exhaustion requirements, where an inmate seeks
injunctive relief challenging the fact of his conviction or the duration of his sentence”) (citing
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)).
Plaintiff also seeks money damages. But the Supreme Court has held that, if a
determination favorable to the plaintiff in a section 1983 action “would necessarily imply the
invalidity of his conviction or sentence,” a plaintiff must prove that the conviction or sentence
has been reversed on direct appeal or declared invalid before he can recover damages under §
1983. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Plaintiff has not done so here.
This limitation on the use of § 1983 has been extended to actions that challenge prison
disciplinary proceedings that affect the duration of confinement. See Edwards v. Balisok, 520
U.S. 641, 648 (1997). Thus, “a state prisoner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of
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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).
The complaint here is less than a model of clarity. But, as I understand it, the complaint
challenges plaintiff’s arrest, extradition, and confinement as well as the propriety of the
disciplinary charge for escape. For the reasons set forth above concerning the limitations of relief
under § 1983, these claims fail as a matter of law.
Plaintiff further relies on 42 U.S.C. § 1981. Section 1981 provides in pertinent part:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a). To state a claim under § 1981, a plaintiff must allege that he is a member of
a racial minority and was subjected to racial discrimination concerning at least one of the
activities enumerated in the statute, i.e., that he was prevented from making and enforcing
contracts, suing and being sued, or giving evidence. See Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Here, however, plaintiff does not
allege interference with any of the enumerated activities under § 1981 and does not assert a claim
of racial discrimination. Accordingly, plaintiff’s claim under § 1981 fails as a matter of law.
Plaintiff also relies on 42 U.S.C. § 1988. Section 1988(a) provides that district courts
shall exercise their jurisdiction over civil rights cases in conformity with federal law (where
appropriate) or state law. This section, however, does not provide an independent cause of

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action. See Moor v. Alameda County, 411 U.S. 693, 702–06 (1973). Section 1988(b) provides for
award of attorney’s fees. As a pro se litigant, however, plaintiff is not entitled to attorney’s fees
under § 1988. See Kay v. Ehrler, 499 U.S. 432, 435 (1991); see also Sosa v. Lantz, 660 F. Supp.
2d 283, 289 (D. Conn. 2009). Accordingly, plaintiff’s claim under § 1988 fails as a matter of
law.
CONCLUSION
Based upon the Court’s review of plaintiff’s complaint pursuant to 28 U.S.C. § 1915A,
the complaint is DISMISSED on grounds that it does not plausibly set forth any grounds for
relief under any of the civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1988, upon which it relies.
The Clerk is directed to enter judgment in favor of defendants and close this case.
SO ORDERED.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

Dated at Bridgeport, Connecticut, this 3rd day of March 2015.

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