Opinion
No. 04-CV-6483CJS.
February 8, 2005
ORDER
INTRODUCTION
Plaintiff Robert Thigpen, an inmate of the Coxsacki Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and requests permission to proceed in forma pauperis (Docket No. 5) and that counsel be assigned (Docket No. 2). Plaintiff claims that the defendants, Orleans County Court Judge James P. Punch, Parole Officer Ronald Laduca and attorney Robert H. Slocum, violated his constitutional rights because of the manner in which he was arrested, detained, prosecuted, represented and convicted of the charge for which he is currently serving a sentence. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted and the complaint is dismissed pursuant to 28 U.S.C. §§ 1915 (e) (2) (B) and 1915A.
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action, plaintiff is granted permission to proceed in forma pauperis. Section 1915 (e) (2) (B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if the Court determines that the action (I) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. In addition, 28 U.S.C. § 1915A(a) requires the Court to conduct an initial screening of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," Id., regardless of whether or not the inmate has sought in forma pauperis status under 28 U.S.C. § 1915.
In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). Based on its evaluation of the complaint, the Court finds that plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) and 1915A(b) because they fail to state a claim upon which relief may be granted.
DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. §§ 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
Plaintiff seeks damages claiming that he was the victim of a false arrest, improper detainer, and the denial of his rights both to represent himself and to effective representation of counsel — all of which allegedly resulted in his being wrongly convicted. The Supreme Court has held, however, that:
[I]n 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, 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. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Heck v. Humphrey, 512 U.S. 477, 484 (1994).
Here, the conviction for which plaintiff is serving a sentence does not appear to have ever been called into question. Plaintiff does not allege that the conviction was invalidated on direct appeal or by a habeas corpus petition. In fact, one of plaintiff's complaints is that he has been denied the where-with-all to prepare an effective appeal. Therefore, the only means by which plaintiff may raise these claims, at this point, is by direct appeal of the conviction itself or through a habeas proceeding.
CONCLUSION
Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis is granted and, for the reasons discussed above, the complaint is dismissed pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) and 1915A. Plaintiff's request for appointment of counsel is denied as moot.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that the motion for counsel is denied; and
FURTHER, that the complaint is dismissed; and
FURTHER, that leave to appeal to the Court of Appeals as a poor person is denied.
SO ORDERED.