Semotuk v. Secretary of Corrections et al

Filing 3

MEMORANDUM AND ORDER ENTERED: This matter is liberally construed as a petition for habeas corpus and is dismissed without prejudice. Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Signed by Senior District Judge Sam A. Crow on 3/18/2013. (Mailed to pro se party Daniel Semotuk by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DANIEL SEMOTUK,
Plaintiff,
v.

CASE NO. 12-3255-SAC

SECRETARY OF CORRECTIONS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff commenced this action while incarcerated in the
Johnson County Adult Detention Center. He proceeds pro se and seeks
leave to proceed in forma pauperis.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. § 1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to

relief,” the matter should be dismissed. Id. at 558.
Plaintiff sues six employees of the Kansas Department of
Corrections, alleging that they have “denied [him] fair and equal
treatment … by imposing harsher punishments than the law allows others
similarly situated to be and than the sentencing Judge Ordered.” (Doc.
1, p. 2.)
The court liberally construes this matter as a challenge to the
execution of plaintiff’s sentence. The sole federal remedy for such
a claim is a petition for habeas corpus. See Preiser v. Rodriguez,
411 U.S. 475, 504, (1973). Before plaintiff may bring a federal habeas
corpus action, he must exhaust available state court remedies. See
Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002)(“A habeas
petitioner is ‘generally required to exhaust state remedies whether
his action is brought under § 2241 or § 2254.’”)(quoting Montez v.
McKinna, 208 F.3d 82, 866 (10th Cir. 2000)).
Finally,

to

the

extent

plaintiff

asserts

constitutional

violations against state employees for their acts related to the
allegedly unlawful execution of his sentence, his claim for damages
is subject to dismissal as premature. “[A] state prisoner’s claim for
damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in
favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence,’ unless the prisoner can demonstrate that the
conviction or sentence has previously been invalidated.” Edwards v.
Balisok, 520 U.S. 641, 643 (1997)(quoting Heck v. Humphrey, 512 U.S.
477, 487 (1994)). Because a judgment in favor of plaintiff on his claim
concerning the execution of his sentence would imply the invalidity
of his continuing incarceration, this matter, if construed as a
complaint under § 1983, would be subject to dismissal as premature.

IT IS, THEREFORE, BY THE COURT ORDERED this matter is liberally
construed as a petition for habeas corpus and is dismissed without
prejudice.
IT IS FURTHER ORDERED plaintiff’s motion for leave to proceed
in forma pauperis (Doc. 2) is granted.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 18th day of March, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge