Opinion
CA. No. 02-424 ML
October 21, 2002
Clarence E. Spivey, Pro Se.
REPORT AND RECOMMENDATION
Confined at the Adult Correctional Institution in Cranston, Rhode Island, plaintiff Clarence E. Spivey has filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of his Constitutional rights for events which occurred between 1972 and 1975. Named as defendants are Albert DeRobbio, William DiMittri, Jr., Vincent O'Connel, Thomas N. Curran, and the "Public Defender's Department." Plaintiff has brought this action alleging that the defendants violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights prior to his criminal trial. He seeks declaratory judgment, compensatory and punitive damages, and release from incarceration.
Section 1915A of Title 28 of the United States Code directs the Court to review prisoner complaints before docketing or soon thereafter to identify cognizable claims or dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A; See also 28 U.S.C. § 1915 (e)(2). Pursuant to this directive, this Court finds that the instant complaint fails to state a claim upon which relief can be granted for the following reasons:
(1) To the extent that the plaintiff seeks to be released from custody, a state prisoner has no cause of action under § 1983 to challenge the very fact or duration of his physical imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). His sole federal remedy lies in a writ of habeas corpus. Id.
(2) To the extent that plaintiff seeks to recover damages for an allegedly unconstitutional conviction or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must demonstrate 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. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Here, plaintiff's complaint is based upon pretrial events which lead to his conviction. Neither plaintiffs conviction nor his sentence has been invalidated. In fact, both his conviction and sentence were affirmed by the Rhode Island Supreme Court on November 22, 1974. See State v. Spivey, 328 A.2d 414 (R.I. 1974).
(3) Moreover, Plaintiff's claims, pursuant to 42 U.S.C. § 1983, are barred are by the three year statute of limitation period. See Owens v. Okure, 488 U.S. 235 (1989) (the forum state's personal injury statute of limitations applies to § 1983 claims); See also R.I. Gen. Laws 9-14-1(b).
Accordingly, for the reasons set forth above, I recommend that plaintiff's complaint be dismissed. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. FED.R.CIV.P. 72(b). Failure to file timely, specific objection to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).