United States District Court, S.D. Indiana, Terre Haute Division
KEVIN D. HAMLET, Plaintiff,
COMMISSIONER Indiana Department of Correction, INDIANA PAROLE BOARD, K. DAVIDSON Indiana Parole Officer, M. EASTON Indiana Parole Officer, BROWN IMPD Officer, MARION CO. CLERK OF THE COURT RM. 24, SUPERINTENDENT New Castle Correctional Facility, NEW CASTLE CORRECTIONAL FACILITY CLASSIFICATION DEPT., UNKNOWN New Castle Correctional Facility staff, RANDY SHORT Director, Classification IDOC, JOHN LAYTON Marion County Sheriff's Department, C. BURKETT Indiana Ombudsman, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
HON.WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT.
plaintiff's request to proceed in forma pauperis
[dkt. 3] is granted. The assessment of even
a partial filing fee is not feasible at this time.
Notwithstanding the foregoing ruling, the plaintiff owes the
filing fee. “All [28 U.S.C.] § 1915 has ever done
is excuse pre-payment of the docket fees; a litigant
remains liable for them, and for other costs, although
poverty may make collection impossible.”
Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.
1996). Accordingly, a separate order pursuant to 28 U.S.C.
§ 1915(b) for the collection of the filing fee is being
plaintiff is a prisoner currently incarcerated at Putnamville
Correctional Industrial Facility (“Putnamville”).
Because the plaintiff is a “prisoner” as defined
by 28 U.S.C. § 1915(h), this Court has an obligation
under 28 U.S.C. § 1915A(b) to screen his complaint
before service on the defendants. Pursuant to 28 U.S.C.
§ 1915A(b), the Court must dismiss the complaint if it
is frivolous or malicious, fails to state a claim for relief,
or seeks monetary relief against a defendant who is immune
from such relief. In determining whether the complaint states
a claim, the Court applies the same standard as when
addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Lagerstrom v. Kingston, 463
F.3d 621, 624 (7th Cir. 2006). To survive dismissal,
[the] complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.
v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints
such as that filed by the plaintiff are construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers. Obriecht v. Raemisch, 517 F.3d
489, 491 n.2 (7th Cir. 2008).
Kevin D. Hamlet alleges that he was denied due process and
retaliated against which led to his wrongful incarcerated.
His claims are brought pursuant to 42 U.S.C. § 1983. The
complaint suggests that these alleged constitutional
violations are a result of the way his probation was revoked.
settled law in these circumstances is that when a prisoner
makes a claim that, if successful, could shorten his term of
imprisonment, the claim must be brought as a habeas petition,
not as a § 1983 claim. Heck v. Humphrey, 512
U.S. 477 (1994). “Should success in a civil suit
necessarily imply the invalidity of a conviction or sentence,
Heck requires the potential plaintiff to wait until
his conviction is nullified before bringing suit.”
Id.; see also Apampa v. Layng, 157 F.3d
1103, 1105 (7th Cir. 1999). Hamlet seeks a declaratory
judgment, money damages, costs and undefined equitable
relief. Although Hamlet does not specifically seek an earlier
release date, it is the injury alleged in a claim, and not
the relief sought in the claim, which determines whether a
claim is cognizable in habeas corpus or should instead be
brought as a civil action. Clayton El v. Fisher, 96
F.3d 236, 242 (7th Cir. 1996). Hamlet's claim that he was
wrongfully incarcerated as a result of an illegal parole
revocation proceeding could lead to the conclusion that he is
entitled to a shortened term of imprisonment.
true even if Hamlet is no longer in custody based on his
original sentence from which the parole violation sprung. The
custody requirement in a habeas proceeding is met where a
prisoner attacks any one of a number of sentences, see,
e.g., Peyton v. Rowe, 391 U.S. 54, 67(1968), and when a
prisoner attacks an earlier conviction, the effect of which
was to delay the start of his current unrelated sentence.
See, e.g., Harrison v. Indiana, 597 F.2d 115, 117
(7th Cir. 1979). The Seventh Circuit has explained that when
seeks to attack a conviction the sentence for which has been
fully served. . . . A successful attack on the first
conviction would nonetheless shorten the time remaining for
him to serve, so that the duration of his custody continued
to be determined by the consecutive effect of both sentences.
Id. Thus, if it were determined that Hamlet is
entitled to a time-cut to an earlier sentence, this
determination would shorten the time remaining for him to
serve on his current sentence. Under these circumstances,
maintaining a civil rights action in which damages are sought
is barred by Heck.
Hamlet is still in custody and because success in this civil
suit would necessarily imply the invalidity of his ...