McKinney v. Kitchens

Filing 11

ORDER DISMISSING CASE under 42 USC 1983; directing Clerk to open a new case with the current complaint and provide plaintiff with the court forms used for 28 USC 2254. Plaintiff is ordered to submit his claims on the form provided by the Court within 28 days of this order. CASE CLOSED. Signed by District Judge Sharion Aycock on 3/12/15. (jlm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JERMANE MCKINNEY

PLAINTIFF

v.

No. 1:15CV1-SA-SAA

DESOTO COUNTY JAIL
OF HERNANDO, ET AL.

DEFENDANTS

ORDER OF DISMISSAL
The court, sua sponte, takes up the dismissal of the plaintiff=s case filed under 42 U.S.C.
§ 1983. The plaintiff, a prisoner proceeding pro se, seeks review of his sentence imposed under
the laws of Mississippi. McKinney alleges that the state court improperly revoked his parole and
imposed a sentence greater than that permitted under Mississippi law. The plaintiff does not
challenge the conditions of his confinement, as required under 42 U.S.C. § 1983; he instead
challenges the fact and duration of his confinement, a claim which he should have brought as a
habeas corpus claim under 28 U.S.C. § 2254. A claim under 42 U.S.C. § 1983 does not accrue
until the conviction or sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477, 489-90
(1994). As the plaintiff has not shown that his conviction or sentence has been reversed,
expunged, invalidated or impugned by the grant of a writ of habeas corpus, his claim under 42
U.S.C. § 1983 is not ripe for consideration and should be dismissed without prejudice to his
ability to file a habeas corpus claim under 42 U.S.C. § 1983.
However, as McKinney appears to have stated a claim under 28 U.S.C. § 2241, the Clerk
of the Court is DIRECTED open a new case with the current complaint and provide the plaintiff
with the court forms used for seeking relief under 28 U.S.C. § 2254.

The plaintiff is ORDERED to submit his claims on the form provided by the court
within 28 days of the date of this order.
SO ORDERED, this the 12th day of March, 2015.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE