Stewart v. Steenbock
MEMORANDUM AND ORDER - This case is dismissed without prejudice pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), for failure to state a claim upon which relief can be granted. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEON A. STEWART,
Plaintiff Deon Stewart, who is incarcerated at the Lincoln Correctional Center,
has been granted leave to proceed in forma pauperis. (Filing 7.) The court now
conducts an initial review of Plaintiff’s Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff brings this 42 U.S.C. § 1983 action requesting money damages and a
“resentenc[ing] . . . for . . . less time.” (Filing 1 at CM/ECF pp. 6-7.) He alleges that
the defendant, the Douglas County Public Defender, failed to raise his insanity at his
plea hearing, his presentence investigation was not complete at the time of his plea,
and the “presentence investigator” was not in court when Plaintiff pled guilty.
Plaintiff says his lawyer and the judge could have given him “a better deal.” (Filing
1 at CM/ECF p. 6.)
II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).
Plaintiff’s allegations all relate to errors committed in his plea hearing which
led to a sentence that Plaintiff believes is too long. A judgment in favor of Plaintiff
on his § 1983 claims would “necessarily imply the invalidity of his . . . sentence.”
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In order to recover damages for an
a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable
under § 1983.
Id. at 486-87. See also Muhammad v. Close, 540 U.S. 749, 750 (2004) (challenges
“to particulars affecting [a sentence’s] duration are the province of habeas corpus”
(citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)); further, where success of a
§ 1983 damages action would question the duration of a sentence, “the litigant must
first achieve favorable termination of his available state, or federal habeas,
opportunities to challenge the underlying conviction or sentence”).
Because Plaintiff has failed to allege that his sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, Plaintiff’s claims must be dismissed without
prejudice1 pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), for failure to state a
claim upon which relief can be granted.2
IT IS ORDERED:
This case is dismissed without prejudice pursuant to Heck v. Humphrey,
512 U.S. 477 (1994), for failure to state a claim upon which relief can be granted; and
Judgment shall be entered by separate document.
DATED this 10th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
Gautreaux v. Sanders, 395 F. App’x 311, 312, 2010 WL 3894619 (8th Cir.
2010) (dismissal of claims under Heck v. Humphrey should be without prejudice so
plaintiff can refile if he satisfies the Heck requirements) (citing Schafer v. Moore, 46
F.3d 43, 45 (8th Cir. 1995)).
In re Jones, 652 F.3d 36, 38-39 (D.C. Cir. 2011) (dismissal based on Heck is
a failure to state a claim under § 1915(g) and constitutes a strike under Prison
Litigation Reform Act); Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir.
2011) (dismissal under Heck is for failure to state a claim; the fact that the court
provided additional reasons for dismissal of some parties did not prevent the dismissal
from being counted as a strike); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995)
(complaint dismissed under Heck properly dismissed for failure to state a claim).
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