Opinion
CIVIL ACTION 99-0969-RV-M
September 18, 2000
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).
I. Complaint as Amended. (Docs. 1 7)
Plaintiff named as Defendants Larry White, a probation officer, and Robert G. Kendall, a Circuit Court Judge for Mobile County, Alabama. Plaintiff claims that probation officer White "violated" him for failing to report on December 19, 1996, and that Judge Kendall revoked his probation on May 18, 1999. Plaintiff maintains that he did not violate his probation because on December 19, 1996, he was incarcerated at the Mobile Community Based Facility operated by the Alabama Department of Corrections ("ADOC") and that both Defendants were given a letter from ADOC proving his whereabouts. For relief, Plaintiff requests that he be exonerated.
Plaintiff dropped his request for monetary damages. See Plaintiff's Motion to Amend (Doc. 7).
II. Standards of Review Under 28 U.S.C. § 1915 (e)(2)(B) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiff's complaint under 28 U.S.C. § 1915 (e) (2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit,id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.
The predecessor to this section was 28 U.S.C. § 1915(d).
III. Discussion.
The Court finds that Plaintiff is challenging his present incarceration in this action. If Plaintiff were seeking damages for his incarceration, the decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), would govern. In Heck, the Supreme Court ruled:
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, (footnote omitted), a § 1983 plaintiff 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, 28 U.S.C. § 2254.Id. at 487, 114 S.Ct. at 2372. The Heck decision has been applied to probation and parole revocations. Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir.), cert. denied, 516 U.S. 851, 116 S.Ct. 148, 133 L.Ed.2d 93 (1995); accord McGrew v. Texas Bd. of Pardons Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (dismissed action pursuant to Heck because the sentence imposed after the revocation of his mandatory supervision had not been invalidated). Because Plaintiff has not shown that his probation revocation has been invalidated, Heck would preclude a claim by Plaintiff for damages, and such a claim would be frivolous.
However, in the present § 1983 action, Plaintiff is seeking injunctive and declaratory relief by his request for "exoneration." Plaintiff's claim for "exoneration" implies a request for the invalidation of his probation revocation and for his release from his present incarceration. A claim for injunctive and declaratory relief in a § 1983 action where a plaintiff challenges the fact or duration of his confinement and seeks his immediate or speedier release is not cognizable in a § 1983 action. Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995).
In Abella, a federal prisoner brought a Bivens action challenging his conviction. The prisoner sought damages and injunctive and declaratory relief. Observing that § 1983 law is commonly applied to Bivens actions, the Eleventh Circuit found that under Heck the prisoner's damages claims were not ripe because the prisoner's convictions had not been invalidated. Id. at 1065. Regarding the prisoner's claims for injunctive and declaratory relief, the Eleventh Circuit held:
Heck reaffirmed that, under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1817, 36 L.Ed.2d 439 (1973), "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release." ___ U.S. at ___, 114 S.Ct. at 2364. Thus, declaratory or injunctive relief claims which are in the nature of habeas corpus claims — i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release — are simply not cognizable under § 1983. (Footnote omitted.) Id. This rule applies equally to Bivens actions. (Citation omitted.)Id. at 1066. "Therefore, injunctive and declaratory relief claims which challenge the fact or duration of confinement are simply never cognizable in § 1983 or Bivens actions." Id. at n. 4.
Thus, Plaintiff's claim for injunctive and declaratory relief is not available in a § 1983 action. Id. at 1066 n. 4. Plaintiff's claim is only recognized in habeas corpus and must be brought in a habeas corpus action under 28 U.S.C. § 2254. Id. Accordingly, Plaintiff's claim for injunctive and declaratory relief lacks an arguable basis in law and is, therefore, frivolous.
V. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i)
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) .
Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.