Opinion
No. 4:10CV133-P-S.
November 29, 2010
MEMORANDUM OPINION
The court, sua sponte, takes up the dismissal of the plaintiff's case filed under 42 U.S.C. § 1983. The plaintiff, a prisoner proceeding pro se, seeks review of his sentence imposed under the laws of Mississippi. Dismuke claims that: his indictment was defective; he was denied an impartial jury; and his life sentence was unlawful. The plaintiff does not challenge the conditions of his confinement, as required under 42 U.S.C. § 1983; he instead challenges the fact and duration of his confinement, a claim which he should have brought as a habeas corpus claim under 28 U.S.C. § 2254. A claim under 42 U.S.C. § 1983 does not accrue until the conviction or sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477, 489-90 (1994). As the plaintiff has not shown that his conviction or sentence has been reversed, expunged, invalidated or impugned by the grant of a writ of habeas corpus, his claim under 42 U.S.C. § 1983 is not ripe for consideration and will be dismissed without prejudice to his ability to file a habeas corpus claim under 28 U.S.C. § 2254.
SO ORDERED, this the 29th day of November, 2010.