Norris v. Nebraska Department of Correctional Services et al

Filing 9

MEMORANDUM AND ORDER - Plaintiff's Complaint is dismissed without prejudice to reassertion in a habeas corpus or other similar proceeding. Judgment will be entered by separate document. Plaintiff's Motion for Class Action Certification (Filing No. 5 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HEATH E. NORRIS,
Plaintiff,
V.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES, et
al.,
Defendants.

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8:16CV403

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint. (Filing
No. 1.) For the reasons that follow, Plaintiff’s Complaint will be dismissed without
prejudice.
I. SUMMARY OF COMPLAINT
Plaintiff, who is currently incarcerated at the Omaha Correctional Center, has
brought suit against the Nebraska Department of Correctional Services, as well several
department officials. Liberally construed, Plaintiff alleges that the defendants added
more time to his sentence in violation of his constitutional rights.
II. STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of
it that states a frivolous or malicious claim, that fails to state a claim upon which relief
may be granted, or that seeks monetary relief from a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION
Plaintiff has failed to state a claim upon which relief can be granted. As set
forth by the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), if success on
the merits of a civil rights claim would necessarily implicate the validity of a
conviction or continued confinement of a convicted state prisoner, the civil rights
claim must be preceded by a favorable outcome in habeas corpus or similar
proceedings in a state or federal forum. Absent such a favorable disposition of the
charges or conviction, a plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the
legality of his conviction or confinement. See Heck, 512 U.S. at 486-87.
Here, Plaintiff alleges that Defendants unlawfully increased his sentence. He
claims he should have been released from custody on November 7, 2015, but that his
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release date was changed to May 7, 2018. (Filing No. 1 at CM/ECF pp. 5, 13.)
Clearly, the allegations Plaintiff has raised in his Complaint necessarily implicate the
validity of Plaintiff’s continued confinement. Thus, this court cannot grant Plaintiff’s
requested relief without first determining that his present confinement is unlawful.
As set forth above, the court cannot address Plaintiff’s claims in an action brought
pursuant to 42 U.S.C. § 1983. See Trine v. Houston, No. 8:06-cv-541, 2006 WL
3408208, *1 (D. Neb. Oct. 23, 2006) (“Decisions which have the effect of extending
custody, such as deprivations of good time, are not only properly challenged in a
habeas action, but are exclusively the province of habeas corpus review”).
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint is dismissed without prejudice to reassertion in a
habeas corpus or other similar proceeding. Judgment will be entered by
separate document.

2.

Plaintiff’s Motion for Class Action Certification (Filing No. 5) is denied
as moot.

DATED this 6th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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