Opinion
CASE NO. 4:06-cv-00510-MP-AK.
December 9, 2008
ORDER
This matter is before the Court on Doc. 15, Report and Recommendations of the Magistrate Judge, recommending that Plaintiff's complaint, doc. 1, be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and recommendation direct the clerk of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and constitutes a "third strike" pursuant to 28 U.S.C. § 1915(g). Mr. Heard filed objections, doc. 17, which the Court has reviewed. The Court agrees with the Magistrate Judge that no matter how Mr. Heard chooses to characterizes his claims, he is still seeking to shorten the time of his incarceration. For the reasons given by the Magistrate Judge in the Report and Recommendation, Mr. Heard must bring such claims in a habeas petition, not a 42 U.S.C. § 1983 case. Also, the Court rejects the argument in Mr. Heard's objections that the Magistrate Judge only considered four claims. The Magistrate Judge instead divided the nine claims into four categories and correctly rejected each. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. This case is dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2).
3. The Clerk is directed to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and constitutes a "third strike" pursuant to 28 U.S.C. § 1915(g)
DONE AND ORDERED.