Opinion
Case No. CV00-0255-S-LMB
March 21, 2002
ORDER
Pending before the Court are Plaintiff's Motion for Reconsideration (Docket No. 21), Defendant Shepard's Motion to Amend Answer (Docket No. 23), and Defendant Shepard's Motion for Summary Judgment (Docket No. 26). Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Id. L. R. 7.1(b). All parties before the Court have consented to the jurisdiction of a United States Magistrate Judge to determine this matter. Accordingly, the Court enters the following Order.
I. DEFENDANT SHEPARD'S MOTION TO AMEND ANSWER
Defendant Shepard filed a Motion to Amend Answer to assert additional defenses based upon the Prison Litigation Reform Act, including the defense of failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a). Plaintiff has not objected to the amendment. Leave to amend a party's pleadings should be freely given when justice so requires. Fed.R.Civ.P. 15(a). Accordingly, Defendant Shepard's Motion shall be granted.
II. DEFENDANT SHEPARD'S MOTION FOR SUMMARY JUDGMENT
Defendant Shepard filed a Motion for Summary Judgment, asserting, among other arguments, that Plaintiff's case is subject to dismissal because he did not exhaust his administrative remedies prior to filing his Complaint. A "prisoner" is required to exhaust administrative remedies prior to instituting suit in federal court regardless of the type of relief he is seeking or the type of relief available under the prison's grievance system. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825 (2001) (interpreting 42 U.S.C. § 1997c(a)). The statutory definition of "prisoner" includes those persons held in custody on alleged parole violations. 42 U.S.C. § 1997e(h).
When a prisoner fails to exhaust his administrative remedies prior to filing suit without a valid excuse, the defendants are entitled to judgment as a matter of law, but the dismissal must be without prejudice to refiling after exhausting his administrative remedies. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Because Plaintiff has not contested his failure to exhaust administrative remedies but may wish to do so in the future, his causes of action against Defendant Shepard shall be dismissed without prejudice. In addition, because Plaintiff has indicated that he no longer intends to pursue his claims against Shepard but has not provided the reason for his abandonment of the claims, the Court shall not address the remainder of Defendant Shepard's arguments but shall dismiss the entire matter without prejudice. Should Plaintiff bring a future action upon the same facts, Defendant shall be entitled to raise the defense of statute of limitations, if applicable, or any other defenses asserted in this matter.
Because Plaintiff's claims against Defendant Shepard are not clearly frivolous, unreasonable, or without foundation, the Court declines to award attorney's fees against him. See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173 (1950). However, the Court warns Plaintiff that he should try to exercise greater foresight in the future. Plaintiff expressed no reason for abandoning his claims. Plaintiff has caused needless litigation and wasted the time and efforts of Defendant, Defendant's counsel's, witnesses and the Court by asserting and then abandoning these claims.
III. PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff wishes to resurrect his claims against the remaining dismissed defendants. He alleges that they violated his rights in the following ways: (1) they held him in custody for 22 days on a parole violation without giving him notice of the charges upon which he was being held; (2) they held him in custody for 37 days before affording him a preliminary hearing; and (3) they failed to give him proper notice of the parole hearing. This Court previously determined that the Parole Officer Defendants in this action would be entitled to qualified immunity at most, not absolute immunity. However, the Court thereafter determined that Plaintiff could not bring his civil rights claims until he invalidated his parole revocation, pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994).
With his Motion to Reconsider, Plaintiff submitted an opinion of the state district court in a habeas corpus action in which he attacked the same incidents. In that matter, Judge D. Duff McKee determined that the delays constituted a Due Process violation, but that the remedy was not dismissal of the parole revocation charges, but simply release pending timely notice and a second parole revocation hearing. Judge McKee determined that, because the parole commission had already held a proper second hearing, after which they revoked parole, the habeas petition was moot. Plaintiff asserts that this state court opinion is an invalidation of the parole revocation. It is not. It is simply an invalidation of the first parole revocation hearing.
Also relevant to the Court's decision on applicability or Heck v. Humphrey is the fact that Petitioner filed a federal Petition for Writ of Habeas Corpus, in Case No. CV01-202-S-MHW (now -BLW), which was dismissed by Judge Winmill for mootness after Petitioner's recent release from incarceration. In that action, Petitioner claimed that these same Defendants' actions of holding him in custody without notice of the charges and without a prompt preliminary hearing caused him to be unable to bring proper witnesses and evidence at his second hearing, resulting in the wrongful denial of parole. This allegation clearly implicates Heck. The Court takes judicial notice of the Petition in Case No. CV01-202-S-MHW. The Court has attached Petitioner's Petition and the Order Dismissing the Petition in that action as exhibits to this Order.
Finally, however, new information that Plaintiff has been released from incarceration changes the Court's analysis of the Heck issue. While it appears that Petitioner's claims would be subject to Heck v. Humphrey if he were still in custody, the Court has determined that Plaintiff's recent release now makes Heck v. Humphrey inapplicable. Plaintiff has now completed his re-incarceration which resulted from the parole revocation. The state of the law concerning this issue is in flux at this point in time; however, the Court is of the opinion that allowing this case to go forward is the more reasonable position, based on the following case law.
In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978 (1998), five United States Supreme Court justices expressed the view in concurring and dissenting opinions that a plaintiff who is not "'in custody' may bring a § 1983 action establishing the unconstitutionality of a conviction . . . without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy." 523 U.S. at 21, 118 S.Ct. at 990 ((Souter, J., O'Connor, J., Ginsburg, J., and Breyer, J., concurring); and (Stevens, J., dissenting) ("Given the Court's holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under § 1983."))
One California federal district court noted that "[t]he majority of U.S. Circuit and District Court cases since Spencer have followed, or adopted the reasoning in, Justice Souter's concurring opinion." Haddad v. California, 64 F. Supp.2d 930, 937 (C.D. Ca. 1999) (citations omitted). This Court agrees that Heck was intended to be a "simple way to avoid collisions at the intersection of habeas and § 1983." Spencer, 523 U.S. at 20, 118 S.Ct. at 989 (Souter, J., concurring). The Court also concurs with Justice Souter's conclusion that
[t]he better view, then, is that a former prisoner, no longer "in custody," may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement. . . . After a prisoner's release from custody, the habeas statute and its exhaustion requirement have nothing to do with his right to any relief.
Id., 118 S.Ct. at 990. See also White v. Phillips, 34 F. Supp.2d 1038 (D.La. 1998); Guerrero v. Gates, 110 F. Supp.2d 1287 (C.D. Ca. 2000). Because Plaintiff has completed the incarceration period for the parole revocation which he challenges, he may proceed on his claims.
Plaintiff is no longer proceeding pro se in this matter since his release from incarceration. As a result, he shall have 120 days in which to serve Defendants, or his claims against them will be dismissed under Federal Rule of Civil Procedure 4(m).
Finally, the Court clarifies for Plaintiff that it previously ruled not that Defendants were entitled to qualified immunity under the facts of this case, but that they were entitled to assert such a defense if they wished to do so. Therefore, the qualified immunity issue is not an appealable matter at this time. The Court also clarifies that Defendants may re-assert their eligibility for absolute immunity, that Heck v. Humphrey bars this action, or any other defense available to them regardless of whether the Court has already considered these issues in the context of initial review of this matter.
IV. ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1. Defendant Shepard's Motion to Amend Answer (Docket No. 23) is GRANTED.
2. Defendant Shepard's Motion for Summary Judgment (Docket No. 26) is GRANTED. All claims against Defendant Shepard are dismissed without prejudice.
3. Plaintiff's Motion for Reconsideration of Order (Docket No. 21) is GRANTED.
4. Plaintiff shall have 120 days after entry of this Order in which to serve Defendants, or his claims against them will be dismissed.