Maxwell v. Lane et al

Filing 22

ORDER adopting Report and Recommendations re 13 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 4/2/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

CARLOS TERRILL MAXWELL,
Plaintiff,
v.
REECE LANE, Jail Administrator,
et al.,
Defendants.

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Case No. CIV-14-50-D

ORDER
This matter comes before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
Upon initial screening, Judge Mitchell finds that Plaintiff’s claims for damages under 42 U.S.C.
§ 1983 challenging the legality of state court convictions should be dismissed as either 1) premature
under the rule of Heck v. Humphrey, 512 U.S. 477 (1994), or 2) barred by the doctrine of sovereign
immunity. Judge Mitchell further finds that because the remedy of release from imprisonment
sought by the Amended Complaint is not available in a § 1983 action, Plaintiff’s pleading should
not be construed as a habeas petition but, instead, his claims should be dismissed without prejudice
to refiling in a proper manner.1
Plaintiff, a state prisoner appearing pro se, has filed a timely “Motion of Appeal” [Doc.
No. 14] that is liberally construed as an objection to the Report. Thus, the Court must make a de
novo determination of the portions of the Report to which specific objection is made, and may

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The dismissal would not terminate the action (and did not terminate the referral), because Plaintiff
asserts other § 1983 claims concerning the conditions of his confinement in the Payne County jail.

accept, modify, or reject the recommended decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3).
Upon consideration, the Court finds that Plaintiff fails to address the deficiencies in his
pleading identified by Judge Mitchell. Liberally construing the Objection, Plaintiff asks that his
improper § 1983 complaint be characterized as a habeas petition. Accordingly, the Court finds that
Plaintiff has waived further judicial review of Judge Mitchell’s findings that his § 1983 claims are
premature under Heck and seek relief that is not available under § 1983, due to his failure to object
to these findings. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United
States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Further, the Court finds that
Plaintiff’s § 1983 action should not be permitted to proceed as a habeas action because (a) Plaintiff
asserts other § 1983 claims that remain pending (see supra note 1) and (b) on March 21, 2014,
Plaintiff filed a separate Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus regarding his
convictions that is currently pending (see Case No. CIV-14-285-F).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 13] is
ADOPTED in its entirety. Plaintiff’s § 1983 claims regarding the legality of his state court
convictions are DISMISSED WITHOUT PREJUDICE. The remainder of Plaintiff’s § 1983 action
remains under referral to Judge Mitchell.
IT IS SO ORDERED this 2nd day of April, 2014.

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