Lindsey v. Mississippi State Parole Board, et al

Filing 11

OPINION re 10 Final Judgment dismissing case as frivolous. Signed by Judge W. Allen Pepper, Jr. on 2/24/06. (pbs, USDC)

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Lindsey v. Mississippi State Parole Board, et al Doc. 11 Case 4:06-cv-00022-WAP-JAD Document 11 Filed 02/27/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION THEODUS LINDSEY, V. MISSISSIPPI STATE PAROLE BOARD, ET AL, PLAINTIFF NO. 4:O6CV22-P-D DEFENDANTS OPINION This matter is before the court, sua sponte, for consideration of dismissal. Plaintiff, an inmate currently incarcerated at the Mississippi State Penitentiary, files this complaint pursuant to 42 U.S.C. 1983. Plaintiff contends that he is not being credited with 1163 days which he completed while on supervised parole, resulting in him having to serve excessive time. After carefully considering the contents of the pro se complaint and giving it the liberal construction required by Haines v. Kerner, 404 U.S. 519 (1972), this court has come to the following conclusion. The United States Supreme Court has held that 1983 is an inappropriate vehicle for an inmate to seek recovery of lost time credits. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), and it is likewise improper for an inmate to sue for damages under 1983 where success on the merits of the claim would "necessarily imply" the invalidity of confinement. Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed.2d 383 (1994). In both cases, the inmate's available remedy is to petition for a writ of habeas corpus. Heck also applies to inmates challenging the loss of earned time credits through prison disciplinary proceedings resulting in a change to the length of their sentences. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). The rule which the Court of Appeals for the Fifth Circuit follows in determining whether a prisoner must first obtain habeas corpus relief before bringing a 1983 action is simple: "if a Case 4:06-cv-00022-WAP-JAD Document 11 Filed 02/27/2006 Page 2 of 2 favorable determination would not automatically entitle the prisoner to accelerated release, the proper vehicle for suit is 1983. If it would so entitle him, he must first get a habeas corpus judgment." Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir. 1997), reh'g denied, 133 F.3d 940 (1997) (citing Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 116 S. Ct. 736, 133 L. Ed. 2d 686 (1996)). If plaintiff is successful in the instant case he would be entitled to accelerated release. Therefore, he must obtain habeas corpus relief before bringing suit pursuant to 1983,1 and this case must be dismissed as legally frivolous pursuant to 28 U.S.C. 1915(e)(2)(B)(i). A final judgment in accordance with this opinion will be entered. THIS the 24th day of February, 2006. /s/ W. Allen Pepper, Jr. W. ALLEN PEPPER, JR. UNITED STATES DISTRICT JUDGE It appears that plaintiff may have filed a motion for post-conviction relief in the Circuit Court of Sunflower County concerning this issue. However, there is no indication that he has been granted habeas corpus relief or has pursued the matter further. It is well-settled that a state prisoner seeking habeas corpus relief in federal court is first required to exhaust available state remedies. 28 U.S.C. 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). More specifically, a petitioner must present his claims to the state courts in such a fashion as to afford those courts a fair opportunity to rule on the merits. Picard v. Conner, 404 U.S. 270 (1971); Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th Cir. 1988). A habeas corpus petitioner must provide the state's highest court with a fair opportunity to pass upon the issues raised in the petition for federal habeas corpus relief. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988) (citing Carter v. Estelle, 677 F.2d 427, 443-44 (5th Cir. 1982)). Clearly, plaintiff has not done so. 2 1

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