Milo (ID 0101994) v. Kansas, State of et al

Filing 17

MEMORANDUM AND ORDER ENTERED: Petitioner's motion of tort 16 is liberally construed as a motion for damages and is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/28/17. 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,
Petitioner,
v.

CASE NO. 17-3154-SAC

WARDEN DAN SCHNURR,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§2254. On October 24, 2017, the Court ordered a response to the
petition.
Petitioner has filed a motion of tort (Doc. #16) in which he seeks
damages. Although damages are not available in habeas corpus, a state
prisoner may seek such relief in an action under 42 U.S.C. § 1983.
Here, however, petitioner’s request for damages in barred by Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck v. Humphrey, the U.S. Supreme
Court held that when a state prisoner seeks damages in a claim related
to his conviction or sentence, the district court must consider
whether a judgment in favor of the prisoner would necessarily imply
the invalidity of the conviction or sentence. If so, the complaint
must be dismissed. Heck v. Humphrey, 512 U.S. at 487. Because
petitioner has not yet obtained relief from his conviction or
sentence, his claim for damages is premature.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion of
tort is liberally construed as a motion for damages and is denied.

IT IS SO ORDERED.
DATED:

This 28th day of November, 2017, at Topeka, Kansas.

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