Avery v. Epps et al
Filing
7
Memorandum Opinion and Order. This cause will be dismissed pursuant to 28 U.S.C. § 1915 (e) (2) (B), with prejudice, for failure to state a claim upon which relief may be granted. A Final Judgment in accordance with this Memorandum Opinion and Order shall be issued. Signed by Honorable David C. Bramlette, III on May 25, 2011. (lda)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
KEINATH DE’MARIO AVERY, #62467
VERSUS
PLAINTIFF
CIVIL ACTION NO. 5:11-cv-56-DCB-JMR
CHRISTOPHER EPPS and
JACQUELYN BANKS, Warden
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court, sua sponte, for consideration
of dismissal. Plaintiff filed this complaint pursuant to 42 U.S.C.
§ 1983 on April 11, 2011.
In his complaint, Plaintiff states that
he is an inmate incarcerated in the Wilkinson County Correctional
Facility,
Woodville,
Mississippi.
The
Christopher Epps and Jacquelyn Banks.
named
Defendants
are
Plaintiff seeks as relief
the re-calculation of his sentence to reflect a credit of the
following:
trusty status, pre-trial jail time and 15% deduction
according to the 85% state law.
Background
Plaintiff states in his complaint that he received a one-year
sentence for escape in April 1999 and a consecutive sentence of 23years
for
the
sale
of
cocaine.
According
to
Plaintiff,
completed his one-year sentence for escape in 2000.
p.7.
he
Compl. [1]
However, he was not considered or placed in 10/30 trusty
status prior to April 28, 2004. Moreover, he has not been credited
with pre-trial jail time or with a 15% deduction of his sentence
allowed by the 85% state law.
Id.
As a result of his sentence not
being properly calculated, Plaintiff argues that he is scheduled to
serve 18 years of his 24-year sentence which he alleges is an
excessive amount of time to serve. Id. at p.8.
Consequently,
Plaintiff has filed the instant civil action.
Analysis
The Prison Litigation Reform Act,
28 U.S.C. § 1915(e)(2) (as
amended), applies to prisoner proceedings in forma pauperis and
provides
that "the court shall dismiss the case at any time if the
court determines that . . .(B) the action or appeal --
(i) is
frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief."
Since Plaintiff was granted in
forma pauperis status, Section 1915(e)(2) applies to the instant
case.
As discussed below, Plaintiff's § 1983 action at this time
fails to state a claim on which relief may be granted.
28 U.S.C.
§ 1915(e)(2)(B)(ii).
Initially, this Court must decide whether Plaintiff should
pursue this matter as a request for habeas corpus relief or as a
civil rights action pursuant to 42 U.S.C. § 1983.
Section 1983 is
an appropriate legal vehicle to attack unconstitutional prison
procedures or conditions of confinement.
F.3d 818, 820 (5th Cir. 1997) (citing
Just.
Planning
Dept.,
37
F.3d
Carson v. Johnson, 112
Cook v. Texas Dept. of Crim.
166,
168
(5th
Cir.
1994)).
Plaintiff must pursue claims that affect his eligibility for, or
entitlement to, accelerated release through habeas corpus.
2
Id.
(citing Pugh v. Parish of St. Tammany, 875 F.2d 436, 439 (5th Cir.
1989)).
If proven, Plaintiff's claim that his sentence should be
credited with his trusty status, with pre-trial jail time and with
a 15% deduction, could result in Plaintiff receiving an early
release.
With this in mind, this Court has determined that
Plaintiff must first pursue this cause by filing a petition for
habeas relief.
Since Plaintiff must pursue this matter through habeas corpus,
Plaintiff is required to exhaust his available state remedies prior
to filing a petition for habeas relief in this court.
Preiser v.
Rodriguez, 411 U.S. 475 (1973); Thomas v. Torres, 717 F.2d 248, 249
(5th Cir. 1983).
Since Plaintiff does not allege that he has
presented a claim relating to the calculation of his sentence to
the Mississippi Supreme
Court,
he
has
not
yet
satisfied
exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A).
the
Therefore,
this complaint will not be liberally construed as a petition for
habeas corpus relief and will be dismissed.
Plaintiff has an available state remedy to pursue the instant
claim that his sentence has not been properly calculated by filing
a
request
with
administrative
the
process.
(Miss.Ct.App. 2001).
requested
Mississippi
relief
See
Department
Murphy
v.
State,
of
Corrections
800
So.2d
525
In the event Plaintiff does not receive the
through
the
prison
3
administrative
remedies
procedure, he may then pursue his claim in state court.
Id.
Once
he has exhausted his available state remedies, and if he does not
receive the requested relief in state court, Plaintiff may then
file a petition for habeas corpus relief pursuant to 28 U.S.C.
§ 2254 in this Court.
Conclusion
Liberally construing this complaint, this Court finds that
Plaintiff is putting into issue the fact of his confinement.
Consequently, Plaintiff has failed to present a claim on which
relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii).
Three-strikes
Since this case is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), it will be counted as a “strike”.
U.S.C. § 1915(g).
See 28
If Plaintiff receives “three strikes,” he will
be denied in forma pauperis status and required to pay the full
filing fee to file a civil action or appeal.
A Final Judgment in accordance with this Memorandum Opinion
and Order shall issue.
This the 25th
day of May, 2011.
s/David Bramlette
UNITED STATES DISTRICT JUDGE
4
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