TURNER v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE BOARD SECRETARY KIMBERLY A. BARKLEY et al

Filing 2

ORDER that Clerk is to mark CASE CLOSED. Petitioner may reopen this case by paying the $5.00 filing fee or submitting an authorization form and a certified copy of the account statement for the six (6) months preceding the filing of the petition . It is further ordered that the Clerk of Court furnish Petitioner with the standard habeas form for Petitioner to fill out and return to the Court along with his filing fee or motion for leave to proceed in forma pauperis. Signed by Magistrate Judge Lisa Pupo Lenihan on January 16, 2014. (kcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER D. TURNER,
Plaintiff,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE BOARD
SECRETARY KIMBERLY A. BARKLEY,
BOARD FIELD AGENT ERIC
CLELLAND, DEPARTMENT OF
CORRECTIONS SECRETARY JOHN E.
WETZE, and SCI SOMERSET
SUPERINTENDENT GERALD ROZUM,

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Civil Action No. 14 – 10J
Chief Magistrate Judge Lisa Pupo
Lenihan

Defendants.

ORDER
Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. He alleges that
he is being illegally detained because his sentence has already expired. He seeks compensatory
and declaratory relief as well as his immediate release from prison. As such, Plaintiff has
presented a hybrid action sounding in both civil rights and habeas. This is impermissible.
A Section 1983 civil rights action is the proper remedy for a prisoner who is seeking
redress for a purported constitutional violation related to prison conditions. Preiser v. Rodriguez,
411 U.S. 475, 499 (1973). On the other hand, “the essence of habeas corpus is an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the writ is
to secure release from illegal custody.” Preiser, 411 U.S. at 484. The Court of Appeals for the
Third Circuit has explained that:
whenever the challenge ultimately attacks the “core of habeas” – the validity of
the continued conviction or the fact or length of the sentence challenge, however
denominated and regardless of the relief sought, must be brought by way of a
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habeas corpus petition. Conversely, when the challenge is to a condition of
confinement such that a finding in plaintiff’s favor would not alter his sentence or
undo his conviction, an action under § 1983 is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)
Here, a ruling in Plaintiff’s favor would affect the fact or duration of his conviction or
sentence. Consequently, Plaintiff’s remedy lies not in a civil rights suit, but in a habeas corpus
action. Therefore, Plaintiff’s complaint will be construed as a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. However, the petition filed by Petitioner was received without a
filing fee or the forms required to proceed in forma pauperis. This action may not proceed
unless Petitioner either,
1)

tenders to the “Clerk, U.S. District Court” a statutory filing fee in the amount of
$5.00, or,

2)

files a properly completed application to proceed in forma pauperis, along with an
authorization form and a certified copy of the account statement for the six (6)
months preceding the filing of the petition.

Therefore,
IT IS ORDERED this 16th day of January, 2014, that the Clerk of Court is to mark this
case CLOSED.
IT IS FURTHER ORDERED that Petitioner may reopen the case by paying the $5.00
filing fee or submitting an authorization form and a certified copy of the account statement for
the six (6) months preceding the filing of the petition.
IT IS FURTHER ORDERED that because the original document that Petitioner filed
with this Court did not comply with Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts and this Court’s Local Rules governing actions under 28 U.S.C. §

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2254 (LCvR 2254(B)), the Clerk of Court is directed to furnish Petitioner with the standard form
entitled Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By a Person In State
Custody. Petitioner must answer all the questions on the form and return it with the $5.00 filing
fee or proper forms to proceed in forma pauperis.
Petitioner may elect to raise in the Petition Under 28 U.S.C. § 2254 For Writ of Habeas
Corpus By a Person In State Custody the same claims that he raised in the original document that
he filed with this Court. He also has the opportunity to raise additional claims attacking his
current confinement. To avoid making successive claims, Petitioner is reminded that he must
bring in the petition that he will file with this Court ALL of the claims that he has that challenge
the validity of his current confinement.

In other words, if his petition is denied after

consideration of his claims on the merits, he will not be able to file another petition at a later time
challenging the same judgment of sentence on other grounds.
Petitioner is further reminded that he cannot present a federal constitutional claim to this
Court until he has properly presented it to the courts of the Commonwealth of Pennsylvania.
Therefore, if he has not presented all of his claims to the courts of the Commonwealth of
Pennsylvania, he may wish to withdraw his petition on file so that he may properly present all of
his claims to the Pennsylvania courts and then file a later petition with this Court presenting all
of his federal constitutional claims. However, he is also advised that pursuant to 28 U.S.C. §
2244(d)(1), federal habeas corpus petitions must be filed within one year after the judgment of
sentence becomes final.

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IT IS FURTHER ORDERED that the parties are allowed fourteen (14) days from this
date to appeal this order to a District Judge pursuant to Rule 72.C.2 of the Local Rules. Failure
to appeal within fourteen (14) days will constitute waiver of the right to appeal.

/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
Chief United States Magistrate Judge

cc:

Christopher D. Turner
HV – 5696
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510

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