Opinion
No. 3:05-CV-1575-M.
August 17, 2005
FILING FEE ORDER
Came on for consideration plaintiff's Motion for Leave to Proceed In Forma Pauperis. The Prison Litigation Reform Act of 1995 (" PLRA") requires prisoners seeking to bring civil actions to pay an initial partial filing fee. The PLRA further requires prisoners thereafter to pay the remainder of the $250.00 filing fee.
The Court, having considered plaintiff's motion in light of the PLRA, hereby ORDERS as follows:
1. Plaintiff is GRANTED leave to proceed pursuant to 28 U.S.C. § 1915.
2. The agency having custody of plaintiff shall, when funds exist in plaintiff's inmate trust account or institutional equivalent, forward to the Court an initial partial filing fee of $0.
3. Plaintiff shall pay $250.00, the balance of the filing fee, in monthly installments as provided in 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, if any, the agency having custody of plaintiff shall deduct 20% of each deposit made to plaintiff's inmate trust account and forward payments to the Court on a regular basis provided the account exceeds $10.00.
4. Service of process shall be withheld pending judicial screening pursuant to 28 U.S.C. § 1915(e)(2) and/or 28 U.S.C. § 1915A.
5. No amendments or supplements to the complaint shall be filed without prior Court approval. A complete amended complaint shall be attached to any motion to amend.
6. All discovery in this case is stayed until defendants are ordered to answer by the Court.
7. No motions for appointment of counsel shall be filed until the Court has completed its screening pursuant to 28 U.S.C. § 1915(e)(2), which may include a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the issuance of a questionnaire pursuant to Watson v. Ault, 525 F.2d 886 (5th Cir. 1976), or such other proceedings as deemed appropriate by the Court.
8. Plaintiff shall notify the Court of any change of address by filing a written Notice of Change of Address with the Clerk. Failure to file such notice may result in this case being dismissed for want of prosecution.
9. The Clerk shall mail a copy of this Order to the inmate accounting office or other person(s) or entity with responsibility for assessing, collecting, and remitting to the Court the filing fee payments on behalf of inmates, as designated by the facility in which plaintiff is confined.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:FINDINGS AND CONCLUSIONS I. Parties
Plaintiff is currently confined in the Texas Department of Criminal Justice, Correctional Institutions Division. He brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis. Defendants are Dallas County and the Texas Department of Criminal Justice.
II. Background
Plaintiff states that in March, 2005, he was sentenced to one year in state jail. He argues Defendants have not properly credited his sentence with time he previously served in shock probation. He states that Defendants have given him a release date of October 7, 2005. Plaintiff claims this date is ninety days past the date he should be released. Plaintiff seeks credit for the time he served on shock probation, or money compensation for false imprisonment.
III. Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Both § 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is frivolous or fails to state a claim upon which relief may be granted. A complaint is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
IV. Discussion
1. Heck v. Humphrey
Plaintiff seeks money damages for false imprisonment. In Heck v. Humprey, 512 U.S. 477 (1994), the Supreme Court held that a § 1983 claim attacking the constitutionality of a conviction or imprisonment does not accrue until that 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, 512 U.S. at 486-87. Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a conviction or sentence. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiff claims that he is being falsely imprisoned are clearly connected to the legality of his present confinement. A finding in favor of Plaintiff would imply the invalidity of his sentence. Plaintiff, however, has not alleged that his conviction has been reversed, expunged, or otherwise invalidated. Hence, no § 1983 cause of action has yet accrued and these claims should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met).
2. Habeas Corpus
Plaintiff's complaint seeks time credit for time spent on shock probation. Plaintiff therefore seeks earlier release from custody. Such a request is cognizable only in a habeas corpus action pursuant to 28 U.S.C. § 2241, et seq. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (stating that a petition for writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same). To the extent that Plaintiff seeks habeas relief, therefore, these claims are dismissed without prejudice to Plaintiff filing a petition for writ of habeas corpus.
RECOMMENDATION
The Court recommends that Plaintiff's claims under 42 U.S.C. § 1983 be dismissed with prejudice until the Heck conditions are met. The Court further recommends that Plaintiff's habeas corpus claims be dismissed without prejudice to Plaintiff filing a petition for writ of habeas corpus.
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).