Dillingham v. Murphy

Filing 13

ORDER DENYING letter 12 , which is constured as a Motion for Reinstatement of the action. Signed by Judge Norman K. Moon on 7/8/2015. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JAMES H. DILLINGHAM III,
Plaintiff,
v.
EUGENE P. MURPHY, ET AL.,
Defendant(s).

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Case No. 7:15CV00188
ORDER
By: Norman K. Moon
United States District Judge

James H. Dillingham III filed this civil rights action under 42 U.S.C. § 1983, alleging that
the defendant, Paul Eugene Murphy, provided ineffective assistance of counsel in disregard to
the risk to Dillingham’s liberty. Dillingham titled his submission “Notice of Intent” to file a
§ 1983. Because no such notice is required to file a § 1983 action, the court construed and
docketed the submission as a § 1983 complaint. By opinion and order entered June 22, 2015, I
summarily dismissed the action without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1), because
Dillingham’s submission failed to provide facts stating any actionable claim under § 1983.
Dillingham has now submitted a letter, seeking reinstatement of the case, or in the alternative, an
extension of the applicable statute of limitations until after his release from prison.1 I will
construe this submission as a motion for reinstatement of the action, but I conclude that such a
motion has no merit.

1

Dillingham also asks me to issue an order in this case directing state officials to allow his children to visit
him in prison. He offers no indication, however, that the defendant named in this case has any authority related to
his prison visitation privileges.

Dillingham states that he is still in the process of exhausting his “state remedies” and
needs more time to submit his claims in this court. 2 Because the case was dismissed without
prejudice, he remains free to file a new pleading to raise his claims in a separate case, once he is
fully prepared to do so. Moreover, in that new pleading, Dillingham can state his request for
tolling of the applicable statute of limitations and provide specific facts showing that he is
entitled to such extraordinary relief.

Finding no good cause, it is now ORDERED that

Dillingham’s letter/motion seeking reinstatement (ECF No. 12) is DENIED.
ENTER:

2

8th
This _____ day of July, 2015.

To the extent that Dillingham is challenging the validity of his current confinement based on Murphy’s
alleged ineffective assistance, he must pursue his claim in a petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, rather than in a § 1983 civil rights action. See Preiser v. Rodriguez, 411 U.S. 475 (1973).