Lynch v. Clement et al
Filing
8
ORDER of Dismissal. ORDERED that the Prisoner Complaint and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot, by Judge Lewis T. Babcock on 3/29/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03162-BNB
JAVAY LYNCH,
Plaintiff,
v.
TOM CLEMENT, Executive Director (CDOC),
LT. KEN TOPLESS, Hearing Officer,
LT. LINDA WORTHEN,
LT. VALARIE CRAIG, Disciplinary Officer,
MJR. FREDIN L. MIKLICH, and
RAE TIMME, Warden,
Defendants.
ORDER OF DISMISSAL
Plaintiff, Javay Lynch, is a prisoner in the custody of the Colorado Department of
Corrections who currently is incarcerated at the correctional facility in Limon, Colorado.
Mr. Lynch, acting pro se, filed a Prisoner Complaint for money damages pursuant to 42
U.S.C. § 1983 challenging the validity of his disciplinary conviction.
Mr. Lynch has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989). Under § 1983, a plaintiff must allege that the defendants
have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co, 398 U.S. 144, 150
(1970).
Mr. Lynch’s ability to file a civil action or appeal in federal court in forma pauperis
pursuant to § 1915 may be barred if he has three or more actions or appeals in any
federal court that were dismissed as frivolous, malicious, or for failure to state a claim
upon which relief may be granted. See 28 U.S.C. § 1915(g). Under § 1915(g), the
Court may count dismissals entered prior to the enactment of this statute. Green v.
Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Lynch’s complaint liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court does not act as an
advocate for a pro se litigant. See id. For the reasons stated below, the complaint and
the action will be dismissed.
Mr. Lynch alleges that Defendants intentionally falsified the disposition of
charges for his prison disciplinary conviction in violation of his Fourteenth Amendment
rights to due process and equal protection. He fails to allege on what disciplinary
charges he was convicted or what sanction, such as loss of good-time credits or
privileges, he received.
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In any event, to the extent Mr. Lynch is challenging the veracity of the disposition
of charges for his disciplinary conviction, he is challenging the conviction itself. Mr.
Lynch may not pursue his request for monetary relief against Defendants based on the
allegedly false disposition of charges pertinent to his disciplinary conviction because
Plaintiff has not shown that the disciplinary conviction has been overturned or otherwise
invalidated. Even if Mr. Lynch’s claims for damages were asserted in a § 1983 action,
the claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant
to Heck, if a judgment for damages necessarily would imply the invalidity of a criminal
conviction or sentence, the action does not arise until the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by the issuance of a federal habeas
writ. See Heck, 512 U.S. at 486-87. This rule is also applicable to prison disciplinary
convictions. See Edwards v. Balisok, 520 U.S. 641, 643 (1997). Mr. Lynch does not
allege, and nothing in the Court file indicates, he has invalidated his disciplinary
conviction through a writ of habeas corpus.
Therefore, the Court finds that Mr. Lynch’s claims challenging the validity of his
prison disciplinary conviction are barred by the rule in Heck, and must be dismissed.
The dismissal will be without prejudice. See Fottler v. United States, 73 F.3d 1064,
1065 (10th Cir. 1996). However, a Heck dismissal counts as a strike under § 1915(g).
See Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177-78 (10th Cir. 2011).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
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(1962). If Mr. Lynch files a notice of appeal he also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice as barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 29th day of
March , 2013.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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