Opinion
1:07CV587.
October 26, 2007
O-R-D-E-R
On August 15, 2007, in accordance with 28 U.S.C. § 636(b), the Recommendation of the United States Magistrate Judge was filed and notice was served on the parties in this action and a copy was given to the court.
Within the time limitation set forth in the statute, Plaintiff objected to the Recommendation.
Plaintiff's objection asks that the court "withhold from making a ruling on Plaintiff's civil complaint until his conviction has been upheld or reversed. . . ." The court declines this course of action. The Supreme Court has said that, in a case of this nature, Plaintiff's claim is not "cognizable under § 1983 at all." Heck v. Humphrey, 512 U.S. 477, 483 (1994); see also id. at 487 ("A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983."). In another place in the Heck opinion, the Court noted that a section 1983 cause of action attacking a criminal conviction that had not be overturned, etc. on appeal did not even exist. See id. at 489 ("We . . . deny the existence of a [§ 1983] cause of action."). For these reasons, the court denies Plaintiff's request that his case be stayed pending the outcome of his appeal in the state court. Simply put, Plaintiff has no cause of action which could be stayed.
The court has appropriately reviewed the portions of the Magistrate Judge's report to which objection was made and has made a de novo determination which is in accord with the Magistrate Judge's report. The court therefore adopts the Magistrate Judge's recommendation.
IT IS THEREFORE ORDERED that Plaintiff's complaint [Pleading no. 2] be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). A judgment dismissing this action will be entered contemporaneously with this Order.