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)

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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

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