KEMP v. HILL
ORDER - Mr. Kemp has also filed a Motion for Appointment of Counsel, [Filing No. 7], and a Motion for Certification as a Class, [Filing No. 8]. Because the case is being dismissed, these motions are DENIED AS MOOT. The Court, having considered the a bove action and the matters that are pending, makes the following rulings: 1. Mr. Kemp's Amended Complaint, 6 , is DISMISSED WITH PREJUDICE; and 2. Mr. Kemp's Motion for Appointment of Counsel, 7 , and Motion for Certification as a Class, 8 , are DENIED AS MOOT. Final judgment shall issue accordingly. (See Order). Copy to Kurt J. Kemp via U.S. mail. Signed by Judge Jane Magnus-Stinson on 10/4/2019. (JDH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KURT J. KEMP,
On September 16, 2019, the Court issued an order granting Plaintiff Kurt J. Kemp’s Motion
for Leave to Proceed In Forma Pauperis and dismissing his Complaint without prejudice. [Filing
No. 5.] In doing so, the Court gave Mr. Kemp permission to file an Amended Complaint,
demonstrating that he has standing to pursue a constitutional challenge to an Indiana statute by
showing: (1) that he has been injured by the statute; (2) how the injury can be fairly traced to the
conduct of the Indiana Attorney General, who he named as Defendant; and (3) how his injury is
likely to be redressed by a favorable decision from this Court. [Filing No. 5 at 6-7.] Mr. Kemp
has now filed an Amended Complaint, [Filing No. 6], as well as a Motion for Appointment of
Counsel, [Filing No. 7], and a Motion for Certification as a Class, [Filing No. 8]. This Order
screens the Amended Complaint, pursuant to 28 U.S.C. § 1915(e)(2), addresses the other motions,
and dismisses the Amended Complaint with prejudice.
A. Screening Standard
Pursuant to 28 U.S.C. § 1915(e)(2), the Court shall dismiss a case brought by a plaintiff
proceeding in forma pauperis “at any time if the court determines that . . . the action . . . is frivolous
or malicious; . . . fails to state a claim on which relief may be granted; or . . . seeks monetary relief
against a defendant who is immune from such relief.” In determining whether a complaint states
a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
To survive dismissal:
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Amended Complaint
Mr. Kemp’s Amended Complaint seeks to challenge the validity of Ind. Code § 35-42-44(b)(2), which criminalizes the dissemination of child pornography. [Filing No. 6 at 1.] Mr. Kemp
alleges that he was convicted of child exploitation under that statute, which added 6 years of prison
time to the total 11-year sentence he is now serving and subjects him to the requirement that he
register as a sex offender once his sentence is over. [Filing No. 6 at 1.] He states that these injuries
are traceable to the Indiana Attorney General, who is responsible for enforcing the law and
upholding the Constitution. [Filing No. 6 at 2.] He further alleges that a favorable ruling in this
case would redress his injuries because it would invalidate all convictions under this provision and
repeal the overbroad provisions of the statute. [Filing No. 6 at 2.]
Mr. Kemp states that his lawsuit is authorized by 28 U.S.C. § 1343(a)(3), and that the Court
has jurisdiction under that provision and under 28 U.S.C. § 1331. [Filing No. 6 at 1.] He also
references 28 U.S.C. §§ 2201 and 2202, and seeks declaratory relief in the form of a judgment
stating that Ind. Code § 35-42-4-4(b)(2) is unconstitutional. [Filing No. 6 at 1; Filing No. 6 at 4.]
The Court acknowledges Mr. Kemp’s efforts to comply with the September 16 order
directing him to provide allegations as to the injury, traceability, and redressability elements of
standing. However, based on the allegations in the Amended Complaint, a different issue has
presented itself: Mr. Kemp’s lawsuit is barred because a plaintiff may not bring a civil action that,
if successful, would undermine the validity of his conviction that has not already been invalidated.
Although Mr. Kemp purports to bring this lawsuit under 28 U.S.C. § 1343(a)(3), that
provision merely confers jurisdiction upon District Courts, and, in substance, Mr. Kemp’s action
is one under 42 U.S.C. § 1983, which provides a right of action to remedy violations of the
Constitution. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979) (“Section
1 of the Civil Rights Act of 1871 is the source of both the jurisdictional grant now codified in 28
U.S.C. § 1343(3) and the remedy now authorized by 42 U.S.C. § 1983.”). It is well-established
that a plaintiff cannot pursue a § 1983 action to challenge the validity of his conviction, and instead
must pursue a writ of habeas corpus to do so. See Heck v. Humphrey, 512 U.S. 477, 481 (1994)
(recognizing that Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973), “held that habeas corpus is
the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such a claim may come within the literal
terms of § 1983”).
Here, while Mr. Kemp purports to seek only a declaratory judgment invalidating Ind. Code
§ 35-42-4-4(b)(2), he is doing so in order to invalidate his own conviction, and a civil action
seeking such relief is not cognizable. See Preiser, 411 U.S. at 488-90; Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (explaining that the Supreme Court’s decisions in this area, “taken together,
indicate that a state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the
relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct
leading to conviction or internal prison proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration”). In addition, as discussed in the Court’s
previous order, Mr. Kemp’s Amended Complaint cannot be construed as a general challenge to
the statute—rather than a challenge to his own conviction—because he would not have standing
to pursue such an action.
Because Mr. Kemp cannot state a cognizable claim concerning the constitutionality of Ind.
Code § 35-42-4-4(b)(2), and because he cannot amend the Amended Complaint to cure this
deficiency, this action is DISMISSED WITH PREJUDICE. See, e.g., Bogie v. Rosenberg, 705
F.3d 603, 608 (7th Cir. 2013) (stating that dismissal with prejudice is proper “if it is clear that any
amendment would be futile”).
OTHER PENDING MOTIONS
Mr. Kemp has also filed a Motion for Appointment of Counsel, [Filing No. 7], and a Motion
for Certification as a Class, [Filing No. 8]. Because the case is being dismissed, these motions are
DENIED AS MOOT.
The Court, having considered the above action and the matters that are pending, makes the
1. Mr. Kemp’s Amended Complaint, , is DISMISSED WITH PREJUDICE;
2. Mr. Kemp’s Motion for Appointment of Counsel, , and Motion for
Certification as a Class, , are DENIED AS MOOT.
Final judgment shall issue accordingly.
Distribution via U.S. Mail to:
KURT J. KEMP
D.O.C. # 266745
New Castle Correctional Facility - Inmate
1000 Van Nuys Road
New Castle, IN 47362
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