Harrison v. Breshear et al

Filing 6

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 5/10/2013. For the reasons set forth, action will be dismissed by separate Order of the Court. cc: Plaintiff, pro se; Defendants (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
JAMES HARRISON
v.

PLAINTIFF
CIVIL ACTION NO. 3:13-CV-P386-S

STEVE BRESHEAR et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff, James Harrison, has filed this pro se action on a 42 U.S.C. § 1983 form. This
matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be
dismissed.
I. SUMMARY OF CLAIMS
Plaintiff, who is currently incarcerated at the Luther Luckett Correctional Complex, was
charged with murder in February 1986 and convicted by a jury who fixed his penalty at life
without benefit of probation or parole until a minimum of 25 years of the sentence. He sues
“Steve Breshear,”1 Governor of Kentucky; J. Michael Brown, Secretary of Justice; LaDonna H.
Thompson, Kentucky Department of Corrections (KDOC) Commissioner; John Hall, KDOC
Offenders Information Service; Clark Taylor, Warden of the Kentucky State Reformatory; and
Larry Chandler, Kentucky Parole Board Chair. He argues that Defendants have applied
subsequent laws, not in effect when he was convicted of his crimes, in violation of the Ex Post
Facto Clause, the Due Process Clause, the Equal Protection Cclause, double jeopardy, Apprendi,
fundamental fairness, and the right to a jury trial. He states that he does not challenge the

1

The Court takes judicial notice that the correct spelling of the Governor’s name is
“Beshear.”

judgment and sentence but rather the enforcement thereof and its finality. He alleges Defendants
acted in a way that denied calculation and determination of availability of probation and parole.
Plaintiff also claims that he is being denied access to the courts to fully present his issues
because of Defendants’ failure and/or refusal to hire a sufficient number of legal aides and
because the law library’s Nexus Lexus computer system does not allow access to Kentucky
statutes and corrections policies prior to 1992 or to any federal or state digests.
Plaintiff asks for monetary, punitive and injunctive relief. The injunctive relief he seeks
is an order prohibiting Defendants from violating federal rights and applying changes in the law
after the commission of the offense and a declaration directing Defendants to calculate the
judgment correctly and determine probation and parole availability and/or suitability as the law
stood during the commission of the offense in 1986.
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, if the court
determines that it is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. §§ 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of

2

Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Claim relating to judgment and sentence
Where a prisoner is challenging the fact or duration of his physical imprisonment and the
relief that 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 petition for writ of habeas corpus. Preiser
v. Rodriguez, 411 U .S. 475, 500 (1973). “[A] prisoner in state custody cannot use a § 1983
action to challenge the fact or duration of his confinement. He must seek federal habeas corpus
relief (or appropriate state relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (internal
quotation marks and citations omitted); Nelson v. Campbell, 541 U.S. 637, 643 (2004).
Since Plaintiff challenges the legality of his confinement, it falls within the “core” of
habeas corpus and thus may not be bought under § 1983. Nelson, 541 U.S. at 643. Therefore, to
the extent that Plaintiff’s complaint challenges the fact or duration of his incarceration, it must be
dismissed. See Barnes v. Lewis, No. 93-5698, 1993 WL 515483, at *1 (6th Cir. Dec. 10, 1993)
(dismissal is appropriate where § 1983 action seeks equitable relief and challenges fact or
duration of confinement); see also Moore v. Pemberton, 110 F.3d 22, 23-24 (7th Cir. 1997) (per
curiam) (reasons for not construing a § 1983 action as one seeking habeas relief include
(1) potential application of Heck v. Humphrey, 512 U.S. 477 (1994); (2) differing defendants;
(3) differing standards of § 1915(a)(3) and § 2253(c); (4) differing fee requirements; and
(5) potential application of second or successive petition doctrine or three-strikes rules of

3

§ 1915(g)).
Access-to-court claim
Plaintiff’s claim regarding his access to the court due to an inadequate number of legal
aides and due to inadequacies of the computer search engine also must be dismissed. “The First
Amendment protects an inmate’s right to access to the courts, but not necessarily his access to all
the legal assistance or materials he may desire.” Tinch v. Huggins, No. 99-3436, 2000 WL
178418, at *1 (6th Cir. Feb. 8, 2000) (citing Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.
1985)).
To state a claim for denial of access to the courts, Plaintiff must demonstrate that he
suffered actual injury. Lewis v. Casey, 518 U.S. 343, 351 (1996). This injury requirement is not
satisfied by just any type of frustrated legal claim. Id. A prison official may be held liable for
the deprivation of this First Amendment right only to the extent that his or her actions prevented
a prisoner from pursuing or caused the rejection of a specific criminal defense, non-frivolous
direct appeal, habeas corpus application, or civil rights action. Id.; Hadix v. Johnson, 182 F.3d
400, 405 (6th Cir. 1999). A plaintiff must show, “for example, that the inadequacy of the prison
law library or the available legal assistance caused such actual injury as the late filing of a court
document or the dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d
413, 416 (6th Cir. 1996); Lewis, 518 U.S. at 356 (advising that no actual injury occurs without a
showing that such a claim “has been lost or rejected, or that the presentation of such a claim is
currently being prevented”). Plaintiff does not allege that he suffered any actual injury due to
the conditions he describes in his complaint. Consequently, his access-to-court claim will be
dismissed for failure to state a claim.

4

III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s claims.
Date:

May 10, 2013

C al R Smpo I , ei J d e
h r s . i sn I Sno u g
e
I
r
U i dSae Ds i C ut
nt tt ir t o r
e
s tc

cc:

Plaintiff, pro se
Defendants
4411.009

5