Stout v. Unknown Party

Filing 11

MEMORANDUM AND ORDER DISMISSING CASE. This action is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. All pending motions are DENIED AS MOOT. Plaintiff is ADVISED that this dismissal shall count as one of h is three allotted strikes under the provisions of 28 U.S.C. § 1915(g). A dismissal without prejudice may count as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim. See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011); Evans v. Ill. Dept of Corr., 150 F.3d 810, 811 (7th Cir. 1998). Signed by Chief Judge Michael J. Reagan on 7/19/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREG STOUT, # Y19267,
Plaintiff,
vs.
UNKNOWN PARTY (Wardens 1-3),
Defendants.

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Case No. 17-cv-621-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Greg Stout, currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that Defendants unlawfully held him in prison past his release date. (Doc. 1).
This case is now before the Court for a preliminary review of the Complaint pursuant to 28
U.S.C. § 1915A , which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
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plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
After fully considering the allegations in Plaintiff’s Complaint, the Court concludes that
this action is subject to summary dismissal.
The Complaint
On January 17, 2017, Plaintiff was sentenced for several crimes to 3 years in prison with
a 1-year period of MSR (commonly referred to as parole), 3 years in prison with 1 year MSR,
and 3 years in prison with 2 years MSR, to run concurrently. (Doc. 1, p. 5). The judge also
allegedly found that Plaintiff was entitled to receive credit for time served in custody, at 251
days, 27 days, and 173 days for each respective offense, for a total of 451 days. Id. Plaintiff
claims his release date should have been April 24, 2017 1 based on the court’s sentencing order,
but he has been unconstitutionally held past that date. (Doc. 1, p. 6). Plaintiff claims this
violates his due process and Eighth Amendment rights. Id. At the time he filed this action on
June 13, 2017, he claims he had been “held unconstitutionally” for almost two months. Id.
As relief, Plaintiff seeks immediate release from prison, as well as compensation for the
each day he spent in prison after his release date. (Doc. 1, pp. 6-7).
Discussion
Based on the allegations of the Complaint, the Court shall characterize the pro se action
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The Illinois Department of Corrections’ website states that Plaintiff’s projected date of parole is
May 25, 2018, and his projected discharge date is May 25, 2020. Website of the Illinois Department of
Corrections, Offender Search page, https://www.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx
(Last visited July 12, 2017).

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in a single count. The parties and the Court will use this designation in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court. The designation of this count
does not constitute an opinion as to its merit.

Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice.
Count 1: Defendants wrongfully incarcerated Plaintiff past his release date in
violation of the Eighth and Fourteenth Amendments.
For the reasons to follow, this claim, and the entire action, shall be dismissed for failure
to state a claim upon which relief may be granted. The dismissal shall be without prejudice.
At the outset, this Court must independently evaluate the substance of Plaintiff’s claim to
determine if the correct statute – in this case 42 U.S.C. § 1983 – is being invoked. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (dismissing § 1983 claims that should have been brought as
petitions for writ of habeas corpus); Bunn v. Conley, 309 F.3d 1002, 1006-07 (7th Cir. 2002)
(district court should not have recharacterized declaratory judgment action as petition for habeas
corpus); Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002) (court must evaluate
independently the substance of the claim being brought, to see if correct statute is being
invoked). A petition for a writ of habeas corpus is the proper route “[i]f the prisoner is seeking
what can fairly be described as a quantum change in the level of custody-whether outright
freedom, or freedom subject to the limited reporting and financial constraints of bond or parole
or probation.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). If, however, the prisoner
“is seeking a different program or location or environment, then he is challenging the conditions
rather than the fact of confinement and his remedy is under civil rights law.” Id.; see also
Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999).
In the instant case, Plaintiff requests both immediate release from custody and monetary
damages. However, he cannot obtain both types of relief in the same case. Release from prison
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is a remedy available only in a habeas corpus action. See Preiser, 411 U.S. at 500; Graham, 922
F.2d at 381. Compensatory and/or punitive damages may be awarded in a successful civil rights
action brought under 42 U.S.C. § 1983, but monetary relief cannot be awarded in a habeas
corpus action.
In order to seek release from prison in federal court, Plaintiff must bring a habeas corpus
action pursuant to 28 U.S.C. § 2254. However, he may only do so after he has first presented all
of his claims to the Illinois courts. Ordinarily, this would involve raising every issue in the trial
court, and appealing any adverse decisions to the Illinois Appellate Court and the Illinois
Supreme Court. See 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999);
Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010). This Court has no information regarding
efforts Plaintiff may have made to obtain his release in habeas actions, whether in state or federal
court, so it will not opine on whether he has exhausted his remedies in the Illinois Courts or
whether a federal habeas action under § 2254 is premature.
Plaintiff faces another hurdle before he may sustain a claim for damages in a civil rights
case under § 1983.

He seeks compensation for what he characterizes as unconstitutional

imprisonment. However, an award of damages based on a sentence or conviction that is still in
force is barred by the rule explained in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
[I]n 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 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. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
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already been invalidated. But if the district court determines that the plaintiff’s
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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (emphasis in original). The Seventh Circuit
elaborated upon this rule in Simpson v. Nickel, 450 F.3d 303, 306-307 (7th Cir. 2006):
The Court held in Heck and Edwards that a prisoner whose grievance implies the
invalidity of ongoing custody must seek review by collateral attack (28 U.S.C. §§
2241, 2254, or 2255, or a state-law equivalent). Only after the custody is over
may the prisoner use § 1983 to seek damages against persons who may have been
responsible; indeed, the § 1983 claim does not accrue until the custody ends. This
is not because federal courts are bound by decisions of state administrative
agencies, but because as a matter of federal law any challenge to the fact or
duration of custody must proceed under § 2254 or an equivalent statute. See
Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Id. Under this reasoning, Plaintiff cannot be awarded any damages in this civil rights action.
Thus, the Complaint herein fails to state a claim upon which relief may be granted. This
case shall be dismissed without prejudice. The dismissal without prejudice means that Plaintiff
may bring his claim for release in a federal habeas corpus action under 28 U.S.C. § 2254 – but
only after he has exhausted his state court remedies. Furthermore, if he obtains an order
reversing, expunging, or invalidating his sentence or continued incarceration, he may bring a
future civil rights action for damages. See Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011)
(discussed in Gordon v. Miller, 528 F. App’x 673, 674 (7th Cir. 2013)). The Court makes no
comment on the potential merits of either of these claims.
Disposition
For the reasons stated above, this action is DISMISSED without prejudice for failure to
state a claim upon which relief may be granted. All pending motions are DENIED AS MOOT.
Plaintiff is ADVISED that this dismissal shall count as one of his three allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g). A dismissal without prejudice may count as a
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strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state
a claim. See Paul v. Marberry, 658 F.3d 702, 704 (7th Cir. 2011); Evans v. Ill. Dep’t of Corr.,
150 F.3d 810, 811 (7th Cir. 1998).
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350.00 remains due and payable.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed
no more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline
cannot be extended.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED:

July 19, 2017
s/MICHAEL J. REAGAN
Chief Judge
United States District Court

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