FLOOD v. HUNTER

Filing 10

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 6 Report and Recommendations. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANDREW P. FLOOD,
PLAINTIFF
v.
ALLEN E. HUNTER,
DEFENDANT

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NO. 1:11-CV-303-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On August 31, 2011, the United States Magistrate Judge filed with the
court, with a copy to the plaintiff, his Order Granting Motion to Proceed
Without Prepayment of the Filing Fee, Denying Motion to Appoint Counsel, and
Recommended Decision After 28 U.S.C. § 1915(e) Screening. The plaintiff filed
an objection to the Recommended Decision on September 14, 2011.

I have

reviewed and considered the Recommended Decision, together with the entire
record; I have made a de novo determination of all matters adjudicated by the
Recommended Decision; and I concur with the recommendations of the United
States Magistrate Judge for the reasons set forth in the Recommended
Decision, and determine that no further proceeding is necessary.
I do not rely on the Magistrate Judge’s judicial immunity analysis
because the plaintiff insists that he is not seeking damages. But the Supreme
Court decision in Heck v. Humphrey, 512 U.S. 477 (1994), clearly governs.

Although that too was a damages lawsuit, the Court was clear that a prisoner
simply has no cause of action under section 1983 “unless and until the
conviction or sentence is reversed, expunged, invalidated, or impugned by the
grant of a writ of habeas corpus.” 512 U.S. at 489. It also equated a damages
claim to an injunctive relief claim that challenged a conviction and said that
neither was “cognizable under § 1983.” Id. at 483.
Here, the plaintiff requests declaratory relief, injunctive relief and “any
additional relief,” all centered on the sentence a state judge imposed for the
defendant’s violation of probation. There simply is no cause of action under
section 1983.
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.

The plaintiff’s 42 U.S.C. § 1983 complaint is

DISMISSED.
I also observe that this plaintiff has filed a multitude of claims in this
court on this matter, all of which have been dismissed: Flood v. Barnhart, No.
1:11–cv–32–DBH; Flood v. Maine Dep’t of Corr., No. 1:11–cv–205–DBH; Flood v.
Maine Dep’t of Corr., No. 1:11-cv-270-DBH; Flood v. Jones, No. 1:11-cv-281DBH.
Accordingly, I place Andrew P. Flood on NOTICE that filing restrictions
“may be in the offing.” Cok v. Family Court of Rhode Island, 985 F.2d 32, 35
(1st Cir. 1993). This represents the “cautionary order” of which Cok speaks.
Id. Groundless and inappropriate filings will not be tolerated.

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SO ORDERED.
DATED THIS 23RD DAY OF SEPTEMBER, 2011
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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