Opinion
CA. No. 02-411 ML
October 10, 2002
REPORT AND RECOMMENDATION
Currently before the court is the application of the plaintiff Jeffery S. Washington, pro se, to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Confined at the Adult Correctional Institution in Cranston, Rhode Island, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of his Constitutional rights. Named as defendants are former Superior Court Judge Thomas Calderone, Medical Examiner Dr. Kristen Sweeney, former Chief Prosecutor James O'Neal, Prosecutor Robert Craven and former Public Defender Richard Casparian. Plaintiff has brought this action alleging that the defendants violated his Fifth, Sixth and Fourteenth Amendment rights during the course of his trial and sentencing. He seeks declaratory judgment, compensatory and punitive damages, and injunctive relief.
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). Neither plaintiff's conviction nor his sentence have been invalidated. In fact, both his conviction and sentence were affirmed by the Rhode Island Supreme Court on November 2, 1990. See State v. Washington, 581 A.2d 1031 (R.I. 1990).
Accordingly, for the reasons set forth above, plaintiff's motion to proceed in forma pauperis is denied. Further, 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).
Additionally, Washington's claim should be dismissed because it is beyond the three year statute of limitation period for § 1983 claims. 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).