Holloman v. Liberty County Sheriff's Department et al

Filing 4

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Gary Wayne Holloman, recommends that the case be dismissed without prejudice and denies the Plaintiff's motion for "Marshal Service". Objections to R&R due by 2/4/2010. Signed by Magistrate Judge G. R. Smith on 01/25/2010. (lmm)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION
GARY W. HOLLOMAN, Plaintiff, v. TERESA WHITE, ROLAND L. SHARPE, CHARLES P. ROSE, JR., MICHAEL T. MULDREW, Defendants. ) ) ) ) Case No. CV409-189

REPORT AND RECOMMENDATION This is plaintiff Gary Holloman third 42 U.S.C. § 1983 complaint alleging that the above-captioned defendants conspired to imprison him. See Holloman v. White, No. CV409-050, doc. 1 at 5 (S.D. Ga. filed Mar. 16, 2009); Holloman v. White, No. MC496-097, doc. 2 (S.D.Ga. Oct. 31, 1996). In his last filing, Holloman sought damages and a public apology from the defendants while he was on parole. CV409-050, doc. 1 at 6. This Court dismissed his case because he was asserting, at bottom, a malicious prosecution claim, and such claims do not accrue until the underlying conviction is vacated. Holloman v. White, 2009 WL 3380473 at * 1 (S.D. Ga. Mar 23, 2009) (applying Heck v. Humphrey, 512 U.S. 477, 486-87

(1994)). Claiming that he is now off parole, Holloman sues again on the same claims. CV409-189, doc. 1; see also id. at 8 (State parole board letter: "Mr. Holloman completed his parole sentence and was discharged from parole on 3/19/2009."). 1 As this Court previously explained, however, that is simply not enough. Holloman, 2009 WL 3380473 at * 1. To serve on parole, after all, is merely to serve out one's sentence in another form. 2 So obtaining parole and completing it simply does not affect the

The Court grants him leave to proceed in forma pauperis, doc. 2, as he is indigent. "Where a plaintiff is proceeding in forma pauperis, a district court is required to sua sponte determine whether the complaint: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); See Alba v. Montford, 517 F.3d 1249, 1251-52, n. 3 (11th Cir.), cert. denied, 129 S.Ct. 632 (2008)." Walker v. Sun Trust Bank Of Thomasville, GA, 2010 WL 165131 * 4 (11th Cir. Jan. 19, 2010). Thus, the Court will screen his complaint under § 1915(e)(2).
1 2

As one encyclopedist explains:

Parole is a conditional release from physical custody but is not a pardon or a reduction in sentence. Parole is possible only after criminal prosecution and imposition of a sentence. The purpose of parole is reformatory rather than punitive. Parole is intended as a means of restoring to society an offender who is a good social risk, and is a means of affording an offender an opportunity to reform under proper supervision. A further purpose is to facilitate an offender's reintegration into society by the time his or her sentence expire. 67A C.J.S. PARDON & PAROLE § 42 (Definition, nature, and purpose) (June 2009) (footnotes omitted).
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conviction. See 59 AM . JUR. 2D PARDON AND PAROLE § 118 (Generally; underlyingjudgment and sentence) (May 2009) ("Parole does not destroy the judgment against the prisoner or remit his or her guilt."); 67A C.J.S. PARDON & PAROLE § 61 (Operation and effect) (June 2009). Holloman must not return to this Court unless and until he can show that his conviction has been vacated (e.g., he files a habeas corpus action and a court vacates his conviction for lack of sufficient evidence, for a constitutional violation, etc.). Because Holloman has not alleged that his conviction has been set aside or invalidated, he may not proceed with a § 1983 claim against these defendants. Accordingly this case should be DISMISSED without prejudice. Meanwhile, his motion for "Marshall service" (doc. 3) is DENIED.
SO REPORTED AND RECOMMENDED this25th day of

January, 2010.

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UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA