Franks v. Downs et al

Filing 3

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

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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 Case 2:06-cv-00010-GCM Document 3 Filed 05/03/2006 Page 2 of 2 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

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