United States District Court, S.D. Indiana, Indianapolis Division
Kurt J. Kemp, Plaintiff,
Curtis Hill, Defendant.
Jane Magnus-Stinson, Chief Judge United States District Court
September 16, 2019, the Court issued an order granting
Plaintiff Kurt J. Kemp's Motion for Leave to Proceed
In Forma Pauperis and dismissing his Complaint
without prejudice. [Filing No. 5.] In doing so, the
Court gave Mr. Kemp permission to file an Amended Complaint,
demonstrating that he has standing to pursue a constitutional
challenge to an Indiana statute by showing: (1) that he has
been injured by the statute; (2) how the injury can be fairly
traced to the conduct of the Indiana Attorney General, who he
named as Defendant; and (3) how his injury is likely to be
redressed by a favorable decision from this Court.
[Filing No. 5 at 6-7.] Mr. Kemp has now filed an
Amended Complaint, [Filing No. 6], as well as a
Motion for Appointment of Counsel, [Filing No. 7],
and a Motion for Certification as a Class, [Filing No.
8]. This Order screens the Amended Complaint, pursuant
to 28 U.S.C. § 1915(e)(2), addresses the other motions,
and dismisses the Amended Complaint with prejudice.
to 28 U.S.C. § 1915(e)(2), the Court shall dismiss a
case brought by a plaintiff proceeding in forma
pauperis “at any time if the court determines that
. . . the action . . . is frivolous or malicious; . . . fails
to state a claim on which relief may be granted; or . . .
seeks monetary relief against a defendant who is immune from
such relief.” In determining whether a 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
[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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Kemp's Amended Complaint seeks to challenge the validity
of Ind. Code § 35-42-4-4(b)(2), which criminalizes the
dissemination of child pornography. [Filing No. 6 at
1.] Mr. Kemp alleges that he was convicted of child
exploitation under that statute, which added 6 years of
prison time to the total 11-year sentence he is now serving
and subjects him to the requirement that he register as a sex
offender once his sentence is over. [Filing No. 6 at
1.] He states that these injuries are traceable to the
Indiana Attorney General, who is responsible for enforcing
the law and upholding the Constitution. [Filing No. 6 at
2.] He further alleges that a favorable ruling in this
case would redress his injuries because it would invalidate
all convictions under this provision and repeal the overbroad
provisions of the statute. [Filing No. 6 at 2.]
Kemp states that his lawsuit is authorized by 28 U.S.C.
§ 1343(a)(3), and that the Court has jurisdiction under
that provision and under 28 U.S.C. § 1331. [Filing
No. 6 at 1.] He also references 28 U.S.C. §§
2201 and 2202, and seeks declaratory relief in the form of a
judgment stating that Ind. Code § 35-42-4-4(b)(2) is
unconstitutional. [Filing No. 6 at 1; Filing No.
6 at 4.]
Court acknowledges Mr. Kemp's efforts to comply with the
September 16 order directing him to provide allegations as to
the injury, traceability, and redressability elements of
standing. However, based on the allegations in the Amended
Complaint, a different issue has presented itself: Mr.
Kemp's lawsuit is barred because a plaintiff may not
bring a civil action that, if successful, would undermine the
validity of his conviction that has not already been
Mr. Kemp purports to bring this lawsuit under 28 U.S.C.
§ 1343(a)(3), that provision merely confers jurisdiction
upon District Courts, and, in substance, Mr. Kemp's
action is one under 42 U.S.C. § 1983, which provides a
right of action to remedy violations of the Constitution.
SeeChapman v. Houston Welfare Rights Org.,
441 U.S. 600, 608 (1979) (“Section 1 of the Civil
Rights Act of 1871 is the source of both the jurisdictional
grant now codified in 28 U.S.C. § 1343(3) and the remedy
now authorized by 42 U.S.C. § 1983.”). It is
well-established that a plaintiff cannot pursue a § 1983
action to challenge the validity of his conviction, and
instead must pursue a writ of habeas corpus to do so.
SeeHeck v. Humphrey, 512 U.S. 477, 481
(1994) (recognizing that Preiser v. Rodriguez, 411
U.S. 475, 488-90 (1973), “held that habeas ...