Alford v. Peterson et al
MEMORANDUM AND ORDER - This case is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. Any notice of appeal filed by Plaintiff must be accompanied by the $505.00 appellate filing fee because Plaintiff will not be allowed to proceed in forma pauperis on appeal. 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
MARIO D. ALFORD,
DOUG PETERSON and PETE
This matter is before the court on Plaintiff’s Petition for Declaratory Judgment
Relief (Filing No. 1). For the reasons explained below, the court will dismiss this
action with prejudice.
Plaintiff is currently confined at the Nebraska State Penitentiary1 and serving
a sentence of 10 to 36 years’ imprisonment as a result of a conviction from the District
Court of Sarpy County, Nebraska, for assault by a confined person with the habitualoffender enhancement. (Filing No. 1 at CM/ECF p. 1.)
On April 24, 2019, Plaintiff filed a Petition for Declaratory Judgment pursuant
to 28 U.S.C. § 2201, seeking a declaration that Neb. Rev. Stat. §§ 29-2221, 83-1,107,
and 83-1,110 are unconstitutional both facially and as applied to him. (Filing No. 1.)
Plaintiff was granted leave to proceed in forma pauperis on May 23, 2019. (Filing No.
Plaintiff’s Petition states that he is confined at the Tecumseh State Correctional
Institution, but the Nebraska Department of Correctional Services website indicates
that Plaintiff is confined at the Nebraska State Penitentiary.
10.) After a delay in receiving payment of Plaintiff’s initial partial filing fee (Filing
Nos. 11, 12), Plaintiff’s Petition is now ready for initial review.
A “civil action” under 28 U.S.C. § 1915 of the Prison Litigation Reform Act
(“PLRA”) is not limited to actions challenging a prisoner’s conditions of confinement;
rather, courts have consistently applied the provisions of section 1915 to all manner
of civil actions brought by prisoners, including declaratory-judgment actions. See,
e.g., United States v. Jones, 215 F.3d 467 (4th Cir. 2000) (prisoner’s post-conviction
motion for the return of property is a “civil action” for purposes of provision of PLRA
requiring that a prisoner who brings a civil action or appeal must pay the full filing
fee; that provision is not limited to prisoner civil-rights cases); Hill v. City of St. Louis,
No. 4:14CV1813, 2015 WL 224998, at *1 (E.D. Mo. Jan. 15, 2015) (assessing initial
partial filing fee pursuant to 28 U.S.C. § 1915(b) in prisoner’s action for declaratory
judgment pursuant to 28 U.S.C. § 2201).
Under 28 U.S.C. § 1915, 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.”). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir.
2014) (internal quotation marks and citations omitted).
Here, Plaintiff claims the habitual-offender statute, Neb. Rev. Stat. § 29-2221
(Westlaw 2019), and the statutes relating to calculation of a prisoner’s good time,
Neb. Rev. Stat. §§ 83-1,107 and 83-1,110 (Westlaw 2019), violate principles of due
process, equal protection, separation of powers, the Sixth Amendment, and the Ex
Post Facto Clause, among others. Essentially, Plaintiff claims his conviction and
sentence under these statutes were unconstitutional because he had no notice that he
would not receive good time toward his mandatory-minimum habitual-offender
sentence, and the habitual-offender statute impermissibly allows the trial court to
determine facts that increase an offender’s punishment.
Plaintiff attempts to attack his state conviction indirectly through the
Declaratory Judgment Act, 28 U.S.C. § 2201, when he should have done so directly
through a habeas petition. The law is well-established that a prisoner cannot seek a
declaratory judgment under 28 U.S.C. § 2201 as to the validity of a state-court
judgment which he is engaged in serving. Christopher v. State of Iowa, 324 F.2d 180,
181 (8th Cir. 1963). “Any declaration that the criminal statute under which Plaintiff
was convicted is invalid would equate to a review of the judgment.” Halfacre v.
Arkansas, No. 4:11CV00138, 2011 WL 1042291, at *1 (E.D. Ark. Mar. 21, 2011)
(citing Jones v. Missouri, Case No. 1:08CV38, 2008 WL 2020318, at *4 (E.D. Mo.
May 7, 2008) (unpublished opinion) (declaratory decree that judgment was invalid
because plaintiff was deprived of right to fair trial due to state statute would be review
and revision of judgment)). Such review is limited to the habeas sections of Title 28
of the United States Code. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 747 (1998)
(“The disruptive effects of [a declaratory] action . . . are peculiarly great when the
underlying claim must be adjudicated in a federal habeas proceeding.”) Thus,
Plaintiff’s only remedy in federal district court is habeas corpus.
Accordingly, the court concludes that Plaintiff has failed to state a cognizable
claim under the Declaratory Judgment Act, and his Petition must be dismissed for
failure to state a claim upon which relief may be granted.2
IT IS THEREFORE ORDERED that:
This case is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order.
Any notice of appeal filed by Plaintiff must be accompanied by the
$505.00 appellate filing fee because Plaintiff will not be allowed to proceed in forma
pauperis on appeal.
DATED this 23rd day of July, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
This decision is not intended to bar the filing of a timely and meritorious
habeas action under 28 U.S.C. § 2254.
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