Mascurro et al v. The Geo Group Inc. et al

Filing 8

ORDER denying 2 Motion to Certify Class; denying 4 Motion for Leave to Proceed in forma pauperis; and denying 5 Motion for Leave to Proceed in forma pauperis. Signed by Magistrate Judge James E. Graham on 11/4/2013. (csr)

IN THE UNITED STATES DISTRICT COURT :I r
FOR THE SOUTHERN DISTRICT OF GEdIA
:
WAYCROSS DIVISION
JUAN PEREZ MASCURRO;
JOSE GUTIERREZ; GUILLERMO
LOPEZ; ELVIS RIVERA-VILLALTA;
ALEJANDRO VILLA-GARCIA; JUAN
QUINTERO-ZAZUETA; MONI FANNI
DEL ROSARIO; SANDY SALDANA;
FRANKLIN ALMONTE JLMENEZ;
JOSE REGALADO; SIRIO MEDINA;
ALEXIS VELASUEZ; JOSE NOE
HERRERA; JESUS HERNANEZSALAZAR; MARCOS NAVARRO
PEREZ; JOSE GARCIA RODRIGUEZ;
JOSE TREGO; JESUS VERA VEGA;
JONATHAN MEJIA MIRANDA;
LUCIANO ORTIZ LOPEZ; CESAR
OCTAVIC DIAZ MORENO; JOSE
GUZMAN; FEDERICO MERCADO
CONTRERAS; and JOSE CARREON,

)
)
)

T

2iJI] NO'! -Ll A I:
CIVIL ACTION NO.: V513-079

Plaintiffs,
V.

THE GEO GROUP, INC.; TRACY
JOHNS, Warden; JESSICA M.
SHOCKLEY; ROGER B. PERRY;
FEDERAL BUREAU OF PRISONS;
BOP REGIONAL ADMINISTRATOR;
and BOP GENERAL COUNSEL,
Defendants

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiffs, who are currently housed at D. Ray James Prison in Folkston, Georgia,
filed a cause of action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named
nts of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs filed a motion to

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proceed in forma pauper/s. This Motion is DENIED. In addition, Plaintiffs filed a motion
for class certification, which is also DENIED.
Prisoners proceeding in a civil action against officers or employees of
government entities must comply with the mandates of the Prison Litigation Reform Act,
28 U.S.C. §§ 1915 & 1915A. In determining compliance, the court shall be guided by
the longstanding principle that pro se pleadings are entitled to liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Walker v. Dugger, 860 F.2d 1010, 1011
(11th Cir. 1988).
28 U.S.C. § 1915A requires a district court to screen the complaint for cognizable
claims before or as soon as possible after docketing. The court must dismiss the
complaint or any portion of the complaint that 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. § 1915A(b)(1) and (2).
In Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997), the Eleventh Circuit
interpreted the language contained in 28 U.S.C. § 1915(e)(2)(B)(ii), which is nearly
identical to that contained in the screening provisions at § 191 5A(b). As the language of
§ 1915(e)(2)(B)(ii) closely tracks the language of Federal Rule of Civil Procedure
12(b)(6), the court held that the same standards for determining whether to dismiss for
failure to state a claim under Rule 12(b)(6) should be applied to prisoner complaints
filed pursuant to § 1915(e)(2)(B)(ii). Mitchell, 112 F.3d at 1490. While the court in
Mitchell interpreted § 1915(e), its interpretation guides this court in applying the identical
language of § 1915A.

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2

Plaintiffs contend that they were subjected to disciplinary actions, which resulted
in the loss of good conduct time credit. Plaintiffs seek to have the disciplinary sanctions
against them declared void. Plaintiffs also seek monetary damages in an undisclosed
amount.
In general, the distinction between claims which may be brought under Bivens
and those which must be brought as habeas petitions is reasonably well settled. Claims
in which federal prisoners assert that they are being subjected to unconstitutional
punishment not imposed as part of their sentence, such as, for example, being exposed
to an excessive amount of force, are Bivens actions, not habeas actions. See, e.g.,
Farmer v. Brennan, 511 U.S. 825 (1994). Habeas actions, in contrast, are those that
explicitly or by necessary implication challenge a prisoner's conviction or the sentence
imposed on him by (or under the administrative system implementing the judgment of) a
court. Thus, for example, when a prisoner makes a claim that, if successful, could
shorten or invalidate his term of imprisonment, the claim must be brought as a habeas
petition, not as a Bivens claim. See, e.g., Edwards v. Balisok, 520 U.S. 641 (1997);
Heck v. Humphrey, 512 U.S. 477 (1994). The remedy Plaintiffs seek—to have their
disciplinary sanctions declared void—should be brought pursuant to 28 U.S.C. § 2241
and should be brought individually by each Plaintiff in an action filed by that Plaintiff.
To the extent Plaintiffs seek monetary damages, they are not entitled to their
requested relief. The Supreme Court has held:
that, in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal

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3

court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486-87. According to the Heck Court, "when a . . . prisoner seeks
damages in a [civil rights] suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.
Id. at 487. If this is the case, the plaintiff's complaint "must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been invalidated."
ftI. A district court must determine whether "plaintiffs action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some other bar to the suit."

ft

(emphasis in original). The Supreme Court has applied the Heck analysis to claims
made by prisoners challenging prison disciplinary actions. Hale v. Riggins, 154 F. Appx
782, 783 (11th Cir. 2005) (citing Edwards v. Balisok, 520 U.S. 641, 643-49 (1997)).1
Unless and until Plaintiffs' disciplinary sanctions have been reversed or overturned, they
cannot seek monetary damages for those sanctions.

CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Plaintiffs' Complaint
be DISMISSED based on their failure to state a claim upon which relief may be granted.

SO ORDERED and REPORTED and RECOMMENDED, this

LJ/
I

y of

November, 2013.

AES E. GRAHAM
ITED STATES MAGISTRATE JUDGE
1

The Heck analysis is applicable to Bivens claims. Salazar v. United States Atty. Gen., 476 F. App'x 383,
385 (11th Cir. 2012) (citing Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995)).
4
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