Alonzo-Villarreal v. Maye et al
Filing
5
ORDER ENTERED: Plaintiff's motion 2 for leave to proceed without prepayment of fees is granted. This action is dismissed without prejudice as premature and barred. Signed by Senior District Judge Sam A. Crow on 1/22/2014. (Mailed to pro se party Jesus Alonzo-Villarreal by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESUS ALONZO-VILLARREAL,
Plaintiff,
v.
CASE NO.
13-3032-SAC
CLAUDE MAYE, et al.,
Defendants.
MEMORANDUM AND ORDER
On May 8, 2013, the court entered an order in which it screened
this pro se complaint, which was filed by a federal inmate seeking
damages under the Federal Tort Claims Act (FTCA).
Plaintiff was
ordered to pay an initial partial filing fee as well as to cure
deficiencies found in his original complaint.
filing fee in full.
He has since paid the
Plaintiff has also submitted an Amended
Complaint in response to the court’s screening order.
Having
screened the Amended Complaint1 and reviewed all relevant materials
in the file, the court finds that plaintiff has failed to cure
significant deficiencies of which he was notified.
The court
concludes that this action must be dismissed for reasons that follow
including that plaintiff’s claim for damages is barred by Heck v.
1
Because plaintiff is a prisoner, the court is required by statute to screen
his Amended Complaint and to dismiss the complaint or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted, or seeks relief
from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C.
§ 1915(e)(2)(B).
An Amended Complaint completely supersedes the original complaint, and the
original complaint is no longer before the court.
1
Humphrey.
In its screening order, the court found that plaintiff had named
improper defendants because the sole proper defendant in an FTCA
complaint is the United States.
In his Amended Complaint, plaintiff
has added the United States as a defendant, but again improperly names
Warden Maye and Disciplinary Hearing Officer Potts as defendants.
More importantly, plaintiff has made no attempt to show that
his damages claim should not be dismissed under the rule announced
in Heck v. Humphrey, 512 U.S. 477, 486-7 (1994).
Under the Heck rule,
an inmate may not pursue a damages claim alleging that due process
violations occurred during a prison disciplinary proceeding in which
good time credit was forfeited if granting relief would imply the
invalidity of the resulting disciplinary conviction, unless he shows
that the conviction in question has already been invalidated.
See
Edwards v. Balisok, 520 U.S. 641, 643, 646-48 (1997)(applying Heck
to judgments in prison disciplinary proceedings); cf. Muhammad v.
Close, 540 U.S. 749 (2004).
Plaintiff has made no such showing.
As
the court found in its screening order, plaintiff’s allegations
“necessarily implicate” the invalidity of the prison disciplinary
action under challenge.
Plaintiff has not shown that the challenged
disciplinary action has been overturned.
The court concludes that
his damages claim is barred by Heck and Edwards.
See Parris v. United
States, 45 F.3d 383, 385 (10th Cir. 1995)(applying Heck to tort claims
brought pursuant to FTCA).
2
Ordinarily, a federal inmate seeking to challenge a prison
disciplinary proceeding in which he was sanctioned with a loss of
good time must proceed by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
However, from the outset plaintiff
has expressly pursued a money damages claim rather than expungement
of his disciplinary record or restoration of his good time.
2
Plaintiff’s exhibits indicate that the only relief he sought in his
administrative grievances was damages as well.
He even argued that
expunging his record would not provide satisfactory relief. 3
He
continued to pursue damages only when he filed an administrative tort
claim for in excess of $50,000 with the Bureau of Prisons.
He then
intentionally brought his original complaint under the FTCA and
sought no relief other than money damages.
The request for relief
in his Amended FTCA Complaint likewise seeks nothing other than money
damages.
Thus, even if the complaint could somehow be construed as
a habeas corpus challenge to his disciplinary conviction, it would
likely be dismissed for failure to exhaust administrative remedies.
2
Plaintiff’s own exhibits indicate the following factual background for his
complaint. In December 2011, a cellphone was found during a routine pat-down
search of an inmate other than plaintiff. An investigation of the telephone
numbers on that cellphone connected plaintiff to one of the numbers, and he was
charged as well as the inmate upon whom the phone had been found. Plaintiff was
provided a hearing at which he declined to present witnesses or documentary
evidence. He was found guilty of using or aiding in the use of a “hazardous tool,”
namely the cellphone. Sanctions were imposed that included loss of 41 days good
time. Plaintiff alleges that he is innocent and that no evidence of his guilt
was presented. He also complains that his UDC hearing was conducted by one rather
than two unit team staff members, which he claims was contrary to prison
administrative regulations.
3
Plaintiff did not request either the overturning of his disciplinary
conviction or restoration of his good time in his exhibited administrative
grievances.
3
Finally, the court notes that plaintiff has not alleged facts
suggesting that he suffered any physical injury as a result of the
disciplinary action he challenges.
42 U.S.C. § 1997e(e) provides,
in pertinent part:
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury or
the commission of a sexual act . . . .
42 U.S.C. § 1997e(e).
It follows that plaintiff’s claim for
compensatory damages based on alleged injury to his liberty interest
and defamation is barred by § 1997e(e).
For the foregoing reasons, the court dismisses this action
without prejudice for failure to state a claim.
This dismissal
counts as a strike against Mr. Alonzo-Villareal for purposes of 28
U.S.C. § 1915(g).4
IT IS THEREFORE ORDERED that plaintiff’s Motion for Leave to
Proceed without Prepayment of Fees (Doc. 2) is granted.
IT IS FURTHER ORDERED that this action is dismissed, without
prejudice, as premature and barred under Heck and for failure to
satisfy 42 U.S.C. § 1997e(e).
4
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court that is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.
4
IT IS SO ORDERED.
Dated this 22nd day of January, 2014, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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