Herd v. Allbaugh

Decision Date25 October 2016
Docket NumberCIV 16-443-RAW-SPS
CourtU.S. District Court — Eastern District of Oklahoma
PartiesMILTON HERD, Plaintiff, v. JOE M. ALLBAUGH, Defendant.
OPINION AND ORDER

Plaintiff, a prisoner seeking to bring a civil action, has filed a civil rights complaint (Dkt. 1) and an Affidavit In Forma Pauperis (Dkt. 2 at 2), which the Court construes as a motion for leave to proceed in forma pauperis. For the reasons set forth below, the Court finds the complaint must be dismissed, and Plaintiff may file a petition for a writ of habeas corpus to pursue his claims.

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify any cognizable claim and dismiss any claim which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). To avoid dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Id. at 555. "So, when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief," the cause of action should be dismissed. Id. at 558. Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The Court applies the same standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ. P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).

A pro se plaintiff's complaint must be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous construction given to the pro se litigant's allegations, however, "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Plaintiff has sued Joe M. Allbaugh, Director of the Oklahoma Department of Corrections (DOC), alleging Mr. Allbaugh oversees all DOC operations. (Dkt. 1 at 1). Plaintiff asserts he has been discriminated against "[d]ue to the actions committed by DOC personel [sic]," because he is not allowed to earn Ekstrand1 credits by working at Oklahoma Correctional Industries (OCI). Id. at 2. He claims the discrimination arises from the wrong interpretation of Okla. Stat. tit. 57, § 216, which is a section of the Prisoners Public Works Act. Id. Plaintiff requests relief in the form of monetary damages, additional earned credits, and release from custody. Id. at 28.

"[H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983." Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)). See also Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005). Plaintiff, therefore, may present his claims in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

To the extent Plaintiff seeks compensatory damages for his alleged unconstitutional incarceration, he first must prove his "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, 512 U.S. at 487 (citing 28 U.S.C. § 2254). When judgment for a plaintiff in a § 1983 suit "would necessarily imply the invalidity of his . . . sentence, . . . the complaint must be dismissed unless the plaintiff can demonstrate that the . . . sentence has already been invalidated." Id. Because Plaintiff has not presented evidence that his sentence has been so invalidated, the Court finds his claim for damages is not cognizable under § 1983.

ACCORDINGLY, this action is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A, for failure to state a claim under 42 U.S.C. § 1983. Plaintiff's motion for leave to proceed in forma pauperis (Dkt. 2) is DENIED as moot. The Court Clerk is directed to send Plaintiff the forms for filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

IT IS SO ORDERED this 25th day of October 2016.

Dated this 25th day of October, 2016.

/s/_________

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