Green v. West Virginia Parole Board et al

Filing 20

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 15 AND DISMISSING 1 COMPLAINT WITH PREJUDICE re 1 Complaint filed by Julian Lee Green. The Court directs the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 12/22/14. (njz) copy mailed to pro se pla via cert. return rec't mail

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JULIAN LEE GREEN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV185
(Judge Keeley)

WEST VIRGINIA PAROLE BOARD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 15]
AND DISMISSING COMPLAINT WITH PREJUDICE
The plaintiff, Julian Lee Green (“Green”), is incarcerated at
the Huttonsville Correctional Center in Huttonsville, West Virginia
(Dkt. No. 15 at 1). On August 15, 2013, Green filed this civil
rights complaint seeking relief under 42 U.S.C. § 1983 (Dkt. No.
1).

United States Magistrate Judge John Kaull issued his report

and recommendation (R&R) on April 3, 2014, recommending that the
Court dismiss Green’s complaint as frivolous (Dkt. No. 15 at 6).
Green did not file any objections to the R&R.1

For the reasons

that follow, the Court ADOPTS the R&R (Dkt. No. 15) and DISMISSES
the complaint with prejudice (Dkt. No. 1).
On February 11, 2008, Green was sentenced in the Circuit Court
of Ohio County on charges of fleeing from an officer, vehicle,
1

When reviewing a magistrate judge's R&R pursuant to 28
U.S.C. § 636, the court reviews de novo only that portion of the
R&R to which a timely objection has been made.
28 U.S.C. §
636(b)(1)(C). It will uphold those portions of a recommendation as
to which no objection has been made unless they are "clearly
erroneous." See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005). Inasmuch as Green did not file any
objections to the R&R, the Court will review the R&R for clear
error.

GREEN V. WEST VIRGINIA PAROLE BOARD, ET AL.

1:13CV185

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING COMPLAINT WITH PREJUDICE
injury and forgery credit card (Dkt. No. 15 at 1).

On May 1, 2012,

he was granted parole and released from incarceration. Id. Around
February 8, 2013, the West Virginia Division of Corrections charged
Green with parole violations stemming from an alleged battery on
December 22, 2012.
revoked.

Id.

imprisonment

Id.

On February 19, 2013, Green’s parole was

Green states that he should be released from

because

the

underlying

rationale

for

his

parole

revocation–the state court battery charge–was dismissed. Id. at 5.
He claims that the revocation of his parole violated his due
process rights, equal protection rights, Twelfth and Fourteenth
Amendment rights, and his right to be free from cruel and unusual
punishment.

Id. at 2.

Magistrate Judge Kaull recommended that the Court dismiss
Green’s complaint as frivolous.

28 U.S.C. § 1915A(b)(1).

A

complaint is frivolous if it “lacks an arguable basis either in law
or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.

1827, 1831-32 (1989). “[A]n appeal on a matter of law is frivolous
where ‘[none] of the legal points [are] arguable on their merits.’”
Id. (quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct.
1396, 1400 (1967)).

A court may only dismiss a claim as factually

frivolous if the facts alleged are “clearly baseless.”

Denton v.

Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733 (1992) (quoting
Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833).
2

GREEN V. WEST VIRGINIA PAROLE BOARD, ET AL.

1:13CV185

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING COMPLAINT WITH PREJUDICE
A state court prisoner who seeks release from imprisonment can
only

challenge

“the

very

fact

or

duration

of

his

physical

imprisonment” with a writ of habeas corpus, rather than under 42
U.S.C. § 1983.

Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct.

1827, 1841 (1973).

A prisoner who seeks to recover damages for

unconstitutional imprisonment under § 1983 must prove “that the
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.”

Heck v. Humphrey,

512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994).
In

such

situations,

the

court

“must

consider

whether

a

judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence.”

Id.

If so, “the

complaint must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated.” Id.
See also Wilkinson v. Dotson, 544 U.S. 75, 81-82, 125 S.Ct. 1242,
1248 (2005) (summarizing case law and emphasizing that a state
prisoner’s § 1983 claim is barred if success in that action would
necessarily

demonstrate

the

invalidity

of

confinement

or

its

duration).
As Magistrate Judge Kaull explained, although Green did not
specifically ask for release from imprisonment, he did ask the
3

GREEN V. WEST VIRGINIA PAROLE BOARD, ET AL.

1:13CV185

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING COMPLAINT WITH PREJUDICE
Court to invalidate his current custody (Dkt. No. 15 at 6).
claims

that

he

was

deprived

of

due

process,

and

Green

that

his

constitutional rights are being violated by continued imprisonment
(Dkt. No. 1 at 7-8).

It is undisputed that the West Virginia

Parole Board’s decision to revoke Green’s parole has not yet been
invalidated (Dkt. No. 1; Dkt. No. 15 at 6).

Therefore, a judgment

in favor of Green would “necessarily imply the invalidity of his
conviction or sentence.”
2372.

Heck, 512 U.S. at 486-87; 114 S.Ct. at

Because Green cannot demonstrate that his sentence has been

invalidated, the rule in Preiser and its progeny bars his claim.
Magistrate Judge Kaull’s reasoning in the R&R is persuasive
and, finding no clear error, the Court fully adopts it. Therefore,
the Court ADOPTS the R&R (Dkt. No. 15) in its entirety, and
DISMISSES the complaint (Dkt. No. 1) WITH PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and the pro se
plaintiff, certified mail, return receipt requested, and to enter
a separate judgment order.
DATED: December 22, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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