Morris v. Heck et al

Filing 8

ORDER DISMISSING CASE 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). Signed by Judge David R. Herndon on 3/16/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WARREN MORRIS,
#B77336,

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Plaintiff,
vs.
C/O HECK,
C/O MYERS,
WARDEN JAIMET, and
C/O PIERCE,
Defendants.

Case No. 18−cv–462−DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Warren Morris, an inmate in Illinois River Correctional Center,
brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his
constitutional rights that allegedly occurred at Pinckneyville Correctional Center
(“Pinckneyville”). In his Complaint, plaintiff claims the defendants violated his
right to due process under the Fourteenth Amendment. (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
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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, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not 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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to dismiss this action without prejudice.
The Complaint
In his Complaint (doc. 1), plaintiff makes the following allegations: on May
13, 2017, plaintiff received a disciplinary report for fighting with inmate Juan
Montgomery and was placed in segregation. (Doc. 1, p. 5). On May 15, 2017,
defendant Pierce came to plaintiff’s cell and asked him if he wanted to sign for his
ticket. Id. Plaintiff did so and requested witnesses to be interviewed. Id. After
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plaintiff signed, Pierce read the ticket and left. Id. Plaintiff asked Pierce for a
copy of the ticket, but Pierce ignored him. Id.
On May 17, 2017, plaintiff was called before the adjustment committee for
a disciplinary proceeding conducted by defendants Heck and Myers. Id. Plaintiff
asked Heck if he spoke with Smith or plaintiff’s other witnesses.

Id.

Heck

responded that he would speak to them later and asked plaintiff how he wanted
to plea. Id. Plaintiff responded “not guilty.” Id. Heck then told plaintiff that this
was his second fighting ticket and that he would receive one month of segregation,
one month of C-grade, and one month of commissary restriction, and have 10
days of good conduct credit or statutory good time revoked. Id.
Plaintiff seeks monetary damages from the defendants. (Doc. 1, p. 6).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
designate a single count in this pro se action. 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 regarding its merit.
Count 1 –

Defendants denied Plaintiff due process in conjunction with his
disciplinary hearing held on May 17, 2017, in violation of the
Fourteenth Amendment.

Any other intended claim that has not been recognized by the Court is considered
dismissed without prejudice as inadequately pleaded under the Twombly
pleading standard.
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The Court need not consider whether plaintiff was denied due process by
the defendants, as his claim is barred under the principles outlined in Preiser v.
Rodriguez, 411 U.S. 475 (1973) and Heck v. Humphrey, 512 U.S. 477 (1994). In
Preiser, the Supreme Court explained that restoration of good-conduct credits is
available only in habeas corpus, not under § 1983, because such a claim would
result in “shortening the length of ... actual confinement in prison.” Id. at 487.
This court cannot “award” plaintiff any sentence credit.
Plaintiff’s request for money damages as opposed to injunctive relief does
not change the result. A request for damages instead of an injunction does not
remove a case from the exclusive domain of habeas corpus. See Heck, 512 U.S.
at 486–87, 489 (1994); Whitfield v. Howard, 852 F.3d 656, 661–62 (7th Cir.
2017). “A prisoner seeking money damages for the very fact or duration of his
confinement has no claim under § 1983 ‘unless and until the inmate obtains
favorable termination of a state, or federal habeas, challenge to his conviction or
sentence.’” Ward v. Akpore, 702 F. App’x 467, 468 (7th Cir. 2017) (citing Nelson
v. Campbell, 541 U.S. 637, 646 (2004); Edwards v. Balisok, 520 U.S. 641, 643
(1997)).
Plaintiff’s disciplinary hearing resulted in the revocation of good conduct
credit. Thus, based on Heck, before he can bring a claim for money damages for
any denial of his constitutional rights at the hearing, plaintiff must first obtain a
favorable termination of this revocation. Count 1, along with this action, will
therefore be dismissed without prejudice.
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Disposition
IT IS HEREBY ORDERED that 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 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
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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.

Judge Herndon
2018.03.16
17:09:37 -05'00'
United States District Judge

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