GIBBS-EL v. FLOYD COUNTY SUPERIOR COURT et al

Filing 19

ENTRY AND ORDER Dismissing Action - The complaint fails to survive the screening required by § 1915A because it fails to contain a legally viable claim for the relief which is sought. Dismissal of the action pursuant to 28 U.S.C. § 1915 A(b) is therefore mandatory, Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002), and judgment consistent with this Entry shall now issue. The dismissal shall be without prejudice. Judgment consistent with this Entry shall now issue. Signed by Judge Jane Magnus-Stinson on 7/25/2012. (copy to Plaintiff via US Mail)(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

KENNETH WILLIS GIBBS-EL,

)
)
Plaintiff,
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v.
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)
FLOYD COUNTY SUPERIOR COURT, et al., )
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Defendants.
)

No. 1:12-cv-682-JMS-DML

Entry and Order Dismissing Action
I.
AA complaint must always . . . allege >enough facts to state a claim to relief that
is plausible on its face,=A Limestone Development Corp. v. Village of Lemont, Ill., 520
F.3d 797, 803 (7th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). This plausibility requirement is defeated when a plaintiff pleads himself
out of court “by alleging facts that show there is no viable claim.@ Pugh v. Tribune
Co., 521 F.3d 686, 699 (7th. Cir. 2008); see also Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990) (“Dismissal under Rule 12(b)(6) can be based on the lack
of a cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.”). Pro se complaints such as that filed by Gibbs-El are
construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
The plaintiff’s most recent filing makes clear that he is seeking his release
from confinement through the filing of this action. The exclusive federal remedy for
such a claim is through an action for a writ of habeas corpus. See, e.g., Muhammad v.
Close, 540 U.S. 749, 750-52 (2004). The clarification the plaintiff has provided shows
that he cannot obtain the relief he seeks through an action brought pursuant to 42
U.S.C. § 1983. Additionally, the court is not free to convert the civil rights action to a
habeas action. Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997); Copus v. City of
Edgerton, 96 F.3d 1038 (7th Cir. 1996).

II.
For the reasons explained above, the complaint fails to survive the screening
required by ' 1915A because it fails to contain a legally viable claim for the relief
which is sought. Dismissal of the action pursuant to 28 U.S.C. ' 1915A(b) is therefore
mandatory, Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002),
and judgment consistent with this Entry shall now issue. The dismissal shall be
without prejudice.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

07/25/2012
Date: __________________
_______________________________

Distribution:
Kenneth W. Gibbs-El
DOC #30344
Miami Correctional Facility
3038 West 850 South
P.O. Box 900
Bunker Hill, IN 46914

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana