Opinion
CAUSE NO. 2:10-CV-325.
October 7, 2010
OPINION AND ORDER
This matter is before the court on a complaint filed by John Kochopolous, a pro se prisoner. For the reasons set forth below, this case is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A.
BACKGROUND
DISCUSSION
Kochopolous v. State, Id. pro se pro se Erickson v. Pardus,551 U.S. 8994 28 U.S.C. § 1915A12 Lagerstrom v. Kingston,463 F.3d 621624
[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks and citations omitted).
Heck v. Humphrey, 512 U.S. 477 (1994) provides that where the successful prosecution of a civil rights case would undermine or imply the invalidity of a criminal prosecution, the civil rights case cannot proceed without proof "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." Id. at 487. Here, Kochopolous is incarcerated and his conviction was affirmed by the Court of Appeals of Indiana on June 7, 2010. He does not allege, and based on this complaint and the public records of the Indiana Clerk of the Courts, it would not be reasonable to infer that his convictions have been vacated. Because a finding of liability in this case would undermine the validity of his criminal conviction, Kochopolous may not proceed on this claim until after his conviction or sentence has been overturned or set aside. Therefore this case must be dismissed without prejudice.
CONCLUSION
For the reasons set forth above, this case is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A.