LeBlanc v. Kennedy

Filing 4

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Chris J. LeBlanc...It is recommended that the plaintiff's complaint be dismissed as frivolous pursuant to 28 USC 1915(e)(2)(B)(i)... Objections to R&R due by 5/1/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 4/17/2009. (NLT, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CHRIS J. LEBLANC (#101686) VERSUS CONNIE KENNEDY CIVIL ACTION NUMBER 09-143-RET-SCR

NOTICE Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court. In accordance with 28 U.S.C. § 636(b)(1), you have ten days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within ten days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT. Baton Rouge, Louisiana, April 17, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

CHRIS J. LEBLANC (#101686) VERSUS CONNIE KENNEDY CIVIL ACTION NUMBER 09-143-RET-SCR

MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate confined at Dixon Correctional Institute, Jackson, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against sentence computation analyst Connie Kennedy. Plaintiff alleged that the defendant improperly deprived him of the opportunity to earn good time credits in violation of his

constitutional rights.

Specifically, the plaintiff alleged that

the defendant erroneously applied Act 110 to his sentence to deny him good time credits.1 Plaintiff alleged that he is being held

beyond his release date in violation of his constitutional rights. Subsection (c)(1) of 42 U.S.C. § 1997e provides the following: The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

LSA-R.S. 15:537, enacted by 1994 La. Acts 110, § 1, 3rd Ex.Sess., effective August 27, 1994, provides in pertinent part that sexual offenders sentenced to imprisonment for a stated number of years or months, shall not be eligible for diminution of sentence for good behavior.

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facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An in forma pauperis suit is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733 (1992); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831-32 (1989); Hicks v. Garner, 69 F.3d 22, 24 (5th Cir. 1995). A court may

dismiss a claim as factually frivolous only if the facts are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional. 112 S.Ct. at 1733. Denton, 504 U.S. at 33-34,

Pleaded facts which are merely improbable or

strange, however, are not frivolous for section 1915(d) purposes. Id.; Ancar v. SARA Plasma, Inc., 964 1992). F.2d 465, 468 (5th Cir.

Dismissal under 28 U.S.C. §1915(d) may be made at any time

before or after service of process and before or after an answer is filed. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

Plaintiff's claim regarding the denial of good time credits must initially be pursued through habeas corpus since it challenges the duration of confinement, the resolution of which may entitle him to immediate or early release. Serio v. Members of La. State

Bd. of Pardons, 821 F.2d 1112 (5th Cir. 1987). Additionally, unless the plaintiff can demonstrate that a state court or other authorized tribunal has determined that he has been improperly denied good time credits, he has no damages claim 2

against the defendant cognizable under section 1983.

See, Heck v.

Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994) (in order to recover damages for an or allegedly for other unconstitutional harm caused by conviction actions or

imprisonment,

whose

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus). Plaintiff's claim falls squarely within the Court's holding in Heck. Plaintiff's damage claim seeks monetary damages for the

deprivation of good time credits and directly calls into question the lawfulness of length of his confinement. Because the permanent deprivation of good time credits essentially increases the

plaintiff's sentence, a judgment in the plaintiff's favor would necessarily imply that his increased sentence is invalid. 114 S.Ct. at 2372. Heck,

Yet, the plaintiff failed to show that he has

successfully challenged his confinement or sentence in any other proceeding. Plaintiff offered no proof that the denial of good

time credits has been reversed, expunged set aside by a state court, or called into question by a federal court's issuance of a writ of habeas corpus. Therefore, the plaintiff's denial of good

time credits claim is not cognizable under § 1983 at this time. Plaintiff's sole federal remedy to challenge the fact or duration

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of his confinement is a writ of habeas corpus. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973).

Preiser v.

Because Heck dictates that a cause of action seeking damages under § 1983 for an allegedly unconstitutional imprisonment does not accrue until the length of imprisonment has been invalidated, the § 1983 complaint should be dismissed with prejudice.

Stephenson v. Reno, 28 F.3d 26 (5th Cir. 1994); Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994); Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994). Because it is clear that the plaintiff's claim has no arguable basis in fact or in law the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). RECOMMENDATION It is the recommendation of the magistrate judge that the plaintiff's complaint be dismissed as frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(i). Baton Rouge, Louisiana, April 17, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

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