Dismuke v. Scott

Filing 6

MEMORANDUM OPINION re 5 Order Dismissing Case. Signed by W. Allen Pepper on 11/29/2010. (pls, USDC)

Dismuke v. Scott

Doc. 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION LEE DISMUKE v. WARDEN DANNY SCOTT, ET AL. MEMORANDUM OPINION 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. Dismuke claims that: his indictment was defective; he was denied an impartial jury; and his life sentence was unlawful. 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 will be dismissed without prejudice to his ability to file a habeas corpus claim under 28 U.S.C. § 2254. SO ORDERED, this the 29th day of November, 2010. PLAINTIFF No. 4:10CV133-P-S DEFENDANTS

/s/ W. Allen Pepper, Jr. W. ALLEN PEPPER, JR. UNITED STATES DISTRICT JUDGE

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