Opinion
No. 4:02-CV-324-Y
May 24, 2002
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A (b)(1), AND UNDER 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii)
On April 9, 2002, plaintiff Toby Walter Palitti was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge, and was ordered to pay the full filing fee required by the Prison Litigation Reform Act (PLRA). Palitti's complaint under 42 U.S.C. § 1983 names as defendant Gary Johnson, Director, Texas Department of Criminal Justice-Institutional Division. (Compl. Style; ¶ IV(B).) Plaintiff Palitti alleges that defendant Johnson has failed to acknowledge a court order correcting his entitlement to sentence credit. (Compl. ¶ IV(B).) Palitti also alleges that "TDCJ-ID" has failed to comply with the corrected order of the Criminal District Court Number Two of Tarrant County, Texas to the effect that he is entitled to 100 additional days of credit towards the sentence of two-years-confinement imposed in case number 0602131D. (Compl. ¶ V; attachment pages 9-10.) Palitti seeks a declaration of the amount of time credit he is due towards the sentence, and he s compensation for unlawful detention. (Compl. ¶ VI-Relief.)
A complaint filed in-forma-pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915 (e)(2), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Furthermore, as a part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." After review and consideration of Palitti's claims, the Court finds that they must be dismissed under the authority of these provisions.
Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section 28 U.S.C. § 1915 (e) requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 2001).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2001); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)).
See 28 U.S.C.A. § 1915A(a) (West Supp. 2001).
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Plaintiff seeks in this complaint under 42 U.S.C. § 1983 monetary compensation for alleged unlawful detention, and declaratory relief that he is entitled to time credit against his sentence. In Heck v. Humprhey, the Supreme Court held that a § 1983 claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and 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." This rule applies to claims arising out of the denial of sentence credits. Plaintiff's challenges to the failure to afford him sentence credit, if successful, necessarily would imply the invalidity of his incarceration, and are thus not cognizable under § 1983 unless Plaintiff has satisfied the conditions set by Heck. Plaintiff has failed to establish that he has met the requirements set forth by the Supreme Court. He has not shown that he has obtained such relief prior to filing this action. (Compl. ¶ 1(A).) Thus, Plaintiff remains in custody and has not shown that any additional sentence of confinement resulting from the failure to provide him jail-time credit, has been invalidated by a state or federal court. As a result, Plaintiff's claims for relief are not cognizable under § 1983, and must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915 (e)(2)(B)(i) and (iii).
Heck v. Humphrey, 512 U.S. 477 (1994).
Heck, 512 U.S. at 486-87.
Edwards v. Balisok, 520 U.S. 641, 648 (1997) (Heck doctrine bars a plaintiff's claim for a declaration that the procedures employed in a disciplinary proceeding, which resulted in a loss of good-time credit, were in violation of the constitution); see Ford v. Scott, No. 3-01-CV-33-G, 2001 WL 183075, (N.D. Tex. Feb. 7, 2001) (applying Heck to bar inmate's claim for monetary damages for alleged entitlement to sentence credit and immediate release).
See Heck, 512 U.S. at 487-88.
It is therefore ORDERED that all of Plaintiff's claims under 42 U.S.C. § 1983 be, and they are hereby, DISMISSED WITH PREJUDICE to their being asserted again until the Heck v. Humphrey conditions are met, under the authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915 (e)(2)(B) (ii) and (iii).
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996)