Walling (ID 41769) v. Norwood et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff shall show cause on or before May 31, 2017, why this matter should not be dismissed without prejudice. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 05/17/17. Mailed to pro se party Terry F. Walling by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY F. WALLING,
Plaintiff,
v.

CASE NO. 17-3086-SAC-DJW

JOSEPH NORWOOD, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil action filed by a prisoner in state
custody. Because plaintiff challenges his detention and seeks release
from confinement, the Court liberally construes this matter as a
petition for habeas corpus relief filed under 28 U.S.C. § 2241.1
“[W]hen a state prisoner is challenging the very fact or duration of
his physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from
that imprisonment, his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
A state prisoner proceeding under § 2241 must first exhaust
available state court remedies. See Wilson v. Jones, 430 F.3d 1113,
1117 (10th Cir. 2005)(petitioner seeking relief under § 2241 must
first exhaust available state court remedies, absent showing of
futility). It appears from the materials submitted that plaintiff has
a pending state court action in the District Court of Johnson County
concerning the execution of his state sentence imposed in that
district (Doc. #1, Attach., p. 5). Accordingly, the Court will direct
1

The pleading also seeks damages; however, such a remedy is premature under Heck
v. Humphrey, 512 U.S. 477 (1994).

plaintiff to show cause why this matter should not be dismissed without
prejudice to allow him to exhaust his claims in the state courts.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff shall show cause
on or before May 31, 2017, why this matter should not be dismissed
without prejudice. The failure to file a timely response may result
in the dismissal of this matter without additional prior notice.
IT IS SO ORDERED.
DATED:

This 17th day of May, 2017, at Topeka, Kansas.

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