Franks v. Downs et al

Filing 3

ORDER DISMISSING CASE. Signed by Judge Graham Mullen on 5/2/06. (Gosnell, Joan)

Franks v. Downs et al

Doc. 3

Case 2:06-cv-00010-GCM

Document 3

Filed 05/03/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRYSON CITY DIVISION 2:06CV10-03-MU KENNETH EDWARD FRANKS, ) ) Plaintiff, ) ) v. ) ) JAMES DOWNS, RONALD K. PAYNE, ) ZORO J. GUICE, MARILYN MCDAVIS ) SORRELLS, ANN MELTON, ) ANNA JANE CARSON, MIKE HOLLAND) ) Defendants. ) ____________________________________)

ORDER

THIS MATTER comes before the Court on initial review of Plaintiff's Complaint under 42 U.S.C. § 1983, filed May 1, 2006. (Document No. 1. ) Plaintiff's § 1983 Complaint challenges his confinement as illegal. Plaintiff alleges that was "suppossed [sic] to have been free in court to begin with because of some charge's [sic] and or charge that had been illegally entered against [him]." (Complaint at 3.) A case filed under 42 U.S.C. § 1983 requires a deprivation of a right secured by the Constitution by a person acting under color of state law. Plaintiff's Complaint does not state a cognizable cause of action under 42 U.S.C. § 1983. Instead, based on the nature of Plaintiff's Complaint, this Court concludes that Plaintiff is attempting to file a habeas petition collaterally attacking his state court conviction. State prisoners challenging their confinement ordinarily proceed under 28 U.S.C. § 2254.1 Therefore, this Court will dismiss this action as the Complaint fails to state

Cases filed pursuant to § 2254 are subject to a one year limitations period and require exhaustion of state remedies prior to filing in federal court.

1

Dockets.Justia.com

Case 2:06-cv-00010-GCM

Document 3

Filed 05/03/2006

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claim for relief pursuant to § 1983. NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff's Complaint is Dismissed for failure to state a claim for relief;

SO ORDERED.

Signed: May 2, 2006