Phillip Gene Vice, Plaintiff-appellant, v. George Moore; Patty Tipton, Defendants-appellees, 82 F.3d 419 (6th Cir. 1996)

ORDER

Phillip Vice, a pro se Kentucky prisoner, appeals a district court judgment dismissing his civil rights suit filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Proceeding in forma pauperis, Vice sued a county prosecutor and a court reporter in their official and individual capacities, seeking a reduced sentence and monetary relief. Vice claimed that defendants violated his Fourteenth Amendment due process and equal protection rights by illegally convicting and sentencing him. Although he had allegedly been indicted on a lesser charge of possession with the intent to sell, he was prosecuted and sentenced for the more serious charge of trafficking in more than five pounds of marijuana.

The magistrate judge recommended dismissing the complaint without prejudice pursuant to 28 U.S.C. § 1915(d). Over Vice's objections, the district court adopted the magistrate judge's report and recommendation as the opinion of the court, but dismissed the complaint with prejudice. Vice has filed a timely appeal, reasserting the same claim. He also requests that the court grant him oral argument.

For § 1915(d) dismissals for frivolity, this court reviews the dismissal for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990). A complaint, permitted to be filed without prepayment of any costs under 28 U.S.C. § 1915(a), may be dismissed as frivolous only when the plaintiff fails to present any claim with an arguable or rational basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Vice fails to present a claim with an arguable basis in law under § 1983. Vice argues that his imprisonment violates his constitutional rights because he was not sentenced to the same crime for which he was indicted. A state prisoner does not state a cognizable claim under § 1983 if a ruling on his claim would necessarily render his conviction or sentence invalid, until his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been questioned by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994). Furthermore, the claim is not cognizable and must be dismissed regardless of whether the plaintiff seeks injunctive or monetary relief. Id., at 2373 (claim for damages is not cognizable); Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973) (claim for injunctive relief is only cognizable under 28 U.S.C. § 2254). Vice's confinement has not been remedied by any of the aforementioned procedures. Thus, his claim is not cognizable and the district court did not abuse its discretion by dismissing the complaint.

Finally, the court notes that dismissals under § 1915(d) should be without prejudice to a plaintiff's right to refile if the complaint is accompanied by the appropriate filing fee. See Denton, 504 U.S. at 34.

Accordingly, we hereby deny Vice's request for oral argument and affirm the district court's judgment, as modified to be without prejudice, pursuant to Rule 9(b) (3). Rules of the Sixth Circuit.