Nowlin v. LeBlanc

Filing 5

REPORT AND RECOMMENDATIONS regarding 1 Complaint filed by Gary Nowlin...It is recommended that the pltfs complaint be dismissed pursuant to 28 USC 1915(e)(2)(B)(i)... Objections to R&R due by 12/17/2009. Signed by Magistrate Judge Stephen C. Riedlinger on 11/30/2009. (JDL, ) Remailed on 12/1/2009 to new address (JDL, ).

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

GARY NOWLIN (#262275) VERSUS JAMES LEBLANC 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 fourteen 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, November 30, 2009. CIVIL ACTION NUMBER 09-966-JJB-SCR

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA GARY NOWLIN (#262275) VERSUS JAMES LEBLANC CIVIL ACTION NUMBER 09-966-JJB-SCR MAGISTRATE JUDGE'S REPORT Pro se plaintiff, an inmate currently confined at Pine Prairie Correctional Center, Pine Prairie, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Louisiana Department of Public Safety and Corrections Secretary James LeBlanc. that he was denied good time credits in Plaintiff alleged 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 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 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 against this defendant cognizable under § 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

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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 his confinement. Because the permanent

deprivation of his 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 his 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 claim is not Plaintiff's sole federal

cognizable under § 1983 at this time.

remedy to challenge the fact or duration of his confinement is a writ of habeas corpus. S.Ct. 1827 (1973). 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. Preiser v. Rodriguez, 411 U.S. 475, 93

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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 pursuant to 28 U.S.C.

§1915(e)(2)(B)(i). Baton Rouge, Louisiana, November 30, 2009.

STEPHEN C. RIEDLINGER UNITED STATES MAGISTRATE JUDGE

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