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    Lindsey v. Mississippi State Parole Board, Et Al - Document No. 11

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    OPINION re 10 Final Judgment dismissing case as frivolous. Signed by Judge W. Allen Pepper, Jr. on 2/24/06. (pbs, USDC) 4:2006cv00022 Mississippi Northern District Court

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    Lindsey v. Mississippi State Parole Board, Et Al - Document No. 11

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    OPINION re 10 Final Judgment dismissing case as frivolous. Signed by Judge W. Allen Pepper, Jr. on 2/24/06. (pbs, USDC) 4:2006cv00022 Mississippi Northern District Court

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    Lindsey v. Mississippi State Parole Board, et al - Document No. 11

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    OPINION re 10 Final Judgment dismissing case as frivolous. Signed by Judge W. Allen Pepper, Jr. on 2/24/06. (pbs, USDC) 4:2006cv00022 Mississippi Northern District Court

    Copyright:

    Public Domain
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    36 views2 pages

    Lindsey v. Mississippi State Parole Board, Et Al - Document No. 11

    Uploaded by

    Justia.com
    OPINION re 10 Final Judgment dismissing case as frivolous. Signed by Judge W. Allen Pepper, Jr. on 2/24/06. (pbs, USDC) 4:2006cv00022 Mississippi Northern District Court

    Copyright:

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    Lindsey v. Mississippi State Parole Board, et al Doc.

    11
    Case 4:06-cv-00022-WAP-JAD Document 11 Filed 02/27/2006 Page 1 of 2

    IN THE UNITED STATES DISTRICT COURT


    FOR THE NORTHERN DISTRICT OF MISSISSIPPI
    GREENVILLE DIVISION

    THEODUS LINDSEY, PLAINTIFF

    V. NO. 4:O6CV22-P-D

    MISSISSIPPI STATE PAROLE BOARD, ET AL, DEFENDANTS

    OPINION
    This matter is before the court, sua sponte, for consideration of dismissal. Plaintiff, an

    inmate currently incarcerated at the Mississippi State Penitentiary, files this complaint pursuant to

    42 U.S.C. § 1983. Plaintiff contends that he is not being credited with 1163 days which he

    completed while on supervised parole, resulting in him having to serve excessive time.

    After carefully considering the contents of the pro se complaint and giving it the liberal

    construction required by Haines v. Kerner, 404 U.S. 519 (1972), this court has come to the following

    conclusion.

    The United States Supreme Court has held that § 1983 is an inappropriate vehicle for an

    inmate to seek recovery of lost time credits. Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36

    L. Ed. 2d 439 (1973), and it is likewise improper for an inmate to sue for damages under § 1983

    where success on the merits of the claim would "necessarily imply" the invalidity of confinement.

    Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed.2d 383 (1994). In both cases, the

    inmate's available remedy is to petition for a writ of habeas corpus. Heck also applies to inmates

    challenging the loss of earned time credits through prison disciplinary proceedings resulting in a

    change to the length of their sentences. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L.

    Ed. 2d 906 (1997).

    The rule which the Court of Appeals for the Fifth Circuit follows in determining whether a

    prisoner must first obtain habeas corpus relief before bringing a § 1983 action is simple: "if a

    Dockets.Justia.com
    Case 4:06-cv-00022-WAP-JAD Document 11 Filed 02/27/2006 Page 2 of 2

    favorable determination would not automatically entitle the prisoner to accelerated release, the

    proper vehicle for suit is § 1983. If it would so entitle him, he must first get a habeas corpus

    judgment." Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir. 1997), reh'g denied, 133 F.3d 940 (1997)

    (citing Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 116 S. Ct. 736, 133 L. Ed. 2d

    686 (1996)).

    If plaintiff is successful in the instant case he would be entitled to accelerated release.

    Therefore, he must obtain habeas corpus relief before bringing suit pursuant to § 1983,1 and this case

    must be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

    A final judgment in accordance with this opinion will be entered.

    THIS the 24th day of February, 2006.

    /s/ W. Allen Pepper, Jr.


    W. ALLEN PEPPER, JR.
    UNITED STATES DISTRICT JUDGE

    1
    It appears that plaintiff may have filed a motion for
    post-conviction relief in the Circuit Court of Sunflower County
    concerning this issue. However, there is no indication that he
    has been granted habeas corpus relief or has pursued the matter
    further. It is well-settled that a state prisoner seeking habeas
    corpus relief in federal court is first required to exhaust
    available state remedies. 28 U.S.C. § 2254(b) and (c); see also
    Rose v. Lundy, 455 U.S. 509 (1982). More specifically, a
    petitioner must present his claims to the state courts in such a
    fashion as to afford those courts a fair opportunity to rule on
    the merits. Picard v. Conner, 404 U.S. 270 (1971); Dispensa v.
    Lynaugh, 847 F.2d 211, 217 (5th Cir. 1988). A habeas corpus
    petitioner must provide the state's highest court with a fair
    opportunity to pass upon the issues raised in the petition for
    federal habeas corpus relief. Dupuy v. Butler, 837 F.2d 699, 702
    (5th Cir. 1988) (citing Carter v. Estelle, 677 F.2d 427, 443-44
    (5th Cir. 1982)). Clearly, plaintiff has not done so.

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