Millsap v. Sullivan

Filing 8

ORDER - denying 7 MOTION to Appoint Counsel and MOTION to Set Aside Judgment and granting MOTION for Extension of Time to File the filing fee deadline as to Jessie Millsap. Plaintiff is directed to submit an initial partial filing of $10.98 by no later than 7/14/2017. Signed by Chief Judge Leonard T Strand on 6/5/17. (copy w/nef mailed to pro se filer) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JESSIE LAMONT MILLSAP,
Plaintiff,

No. C17-3034-LTS

vs.
ORDER

THOMAS SULLIVAN,
Defendant.
____________________________

This case is before me on plaintiff’s motion (Doc. No. 7) to appoint counsel, set
aside judgment and extension of time to pay the initial partial filing fee. Before dismissing
plaintiff’s action, I determined that the facts he alleged did not justify the appointment of
counsel. I stand by that determination.
Concerning plaintiff’s motion to set aside the judgment, he states nothing that leads
me to a different conclusion. It is undisputed that plaintiff faced criminal charges or
additional proceedings in light of prior criminal convictions, and, because he does not
contest the validity of such charges or proceedings, they establish probable cause to arrest
him as a matter of law. See, e.g., Davis v. White, 794 F.3d 1008, 1014-15 (8th Cir.
2015) (stating that, “[i]n an extreme case, a police officer’s intentional or reckless failure
to investigate before making a complaint can support a substantive due process claim, but
neither negligent nor grossly negligent failure to investigate amounts to a constitutional
violation” (citing Amrine v. Brooks, 522 F.3d 823, 833-34 (8th Cir. 2008))); Brockinton
v. City of Sherwood, 503 F.3d 667, 672 (8th Cir. 2007) (making clear that the negligent
failure to investigate does not violate due process).

Further, because plaintiff’s

revocation judgment has not been called into question, plaintiff is unable to assert that he
has been detained without legal process. See, e.g., James v. City of Wilkes-Barre, 700
F.3d 675, 682-83 (3d Cir. 2012) (explaining that an arrest made without probable cause

is grounded in the Fourth Amendment’s protection against unreasonable seizures and
prevents a person’s unlawful detention). As I previously explained, no defendant can be
liable until plaintiff demonstrates that the revocation of his probation and subsequent
confinement are unlawful. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (stating
that a 42 U.S.C. § 1983 action is barred if the plaintiff’s claims necessarily imply the
invalidity of his confinement or its duration); Heck v. Humphrey, 512 U.S. 477, 481
(1994) (stating that a writ of 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”); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (finding that a writ of habeas
corpus is the only federal remedy available if a plaintiff is challenging the validity of his
conviction or the duration of his incarceration and seeking a determination that he is
entitled to immediate or speedier release); Deloria v. Lightenberg, 400 F. App’x 117,
118 (8th Cir. 2010) (same).
Regarding an extension of time to pay the initial partial filing fee, I find that it is
appropriate to extend the deadline. Plaintiff is directed to submit an initial partial filing
of $10.98 by no later than July 14, 2017.
Accordingly, plaintiff’s motion to appoint counsel is denied; plaintiff’s motion to
set aside judgment is denied; and plaintiff’s motion for extension of time to pay the initial
partial filing fee is granted.
IT IS SO ORDERED.
DATED this 5th day of June, 2017.

__________________________
Leonard T. Strand, Chief Judge

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