Milo (ID 0101994) v. Kansas, State of et al
MEMORANDUM AND ORDER ENTERED: Petitioner's motion for order 7 is construed as a request to amend the petition and is granted. Petitioner is granted to and including November 27, 2017, to present an amended petition that contains all of the c laims he intends to present in this action. Any claim not included in the amended petition will be considered abandoned. Petitioner's motion of tort 9 is denied without prejudice. Petitioner's motion for a temporary restraining order 10 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/08/17. Mailed to pro se party Gregory John Milo by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREGORY JOHN MILO,
CASE NO. 17-3154-SAC
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On October 24, 2017, the Court issued an order to show cause
directing respondent to answer the claims in the petition.
Three motions filed by the petitioner are pending before the
Court: a motion for order (Doc. #7), a motion of tort (Doc. #9), and
a motion for temporary restraining order (Doc. #10).
Petitioner’s motion for order appears to add specific claims of
ineffective assistance of counsel by his trial and appellate counsel.
To ensure that all claims are presented in a single petition, the Court
will direct petitioner to submit a new petition with all the claims
he intends to present in this action. The Court advises petitioner
that any claim not included in the petition will be considered
Petitioner’s motion of tort seeks damages in excess of three
million dollars from the respondent for violations of his
constitutional rights arising from his illegal sentence. Because
petitioner’s claim for monetary damages seeks a remedy other than
release or a reduced period of confinement, it is not cognizable in
habeas corpus. Petitioner must present his claim for damages in an
action under 42 U.S.C. § 1983 rather than in habeas1. See Wolff v.
McDonnell, 418 U.S. 539, 554-55 (1974).
Under Heck v. Humphrey, 512 U.S. 477 (1994), a plaintiff
proceeding under §1983 seeking damages “for allegedly
unconstitutional conviction or imprisonment, or for other harm caused
by actions who unlawfulness would render a conviction or sentence
invalid” must first establish “that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal … or called into question by a federal
court’s issuance of a writ of habeas corpus.” Id. at 486-87. Because
petitioner cannot allege that his sentence has been invalidated, a
claim for damages under § 1983 is premature under Heck. The Court will
deny the motion of tort without prejudice.
Petitioner’s motion for a temporary restraining order concerns
the conditions of his confinement, specifically, a transfer,
placement in segregation, access to personal property, and delay in
transmitting his filing fee to the Court. The petitioner’s filing fee
in this matter was paid on October 19, and that claim requires no
remedial action. The remainder of the claims must be presented in an
action under 42 U.S.C. § 1983 after proper exhaustion of available
administrative remedies. See Preiser v. Rodriguez, 411 U.S. 475, 499
(1973)(“a § 1983 action is a proper remedy for a state prisoner who
is making a constitutional challenge to the conditions of his prison
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
order (Doc. #7) is construed as a request to amend the petition and
is granted. Petitioner is granted to and including November 27, 2017,
The Court offers no opinion on the merits of such a claim.
to present an amended petition that contains all of the claims he
intends to present in this action. Any claim not included in the
amended petition will be considered abandoned.
IT IS FURTHER ORDERED petitioner’s motion of tort (Doc. #9) is
denied without prejudice.
IT IS FURTHER ORDERED petitioner’s motion for a temporary
restraining order (Doc. #10) is denied.
IT IS SO ORDERED.
This 8th day of November, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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