Richards v. Brown et al, No. 3:2011cv00426 - Document 24 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/17/12. Copy sent: Yes(tdai, )
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IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division MARK E. RICHARDS, Plaintiff, Civil v. WENDY K. BROWN, Action No. 3:11CV426 et al., Defendants. MEMORANDUM OPINION Mark E. se and in 42 U.S.C. Richards, a Virginia state prisoner proceeding pro forma pauperis, § 1983. filed this The matter pursuant to 28 U.S.C. Magistrate before §§ 1915(e)(2) I. The is Judge civil rights action under the court for evaluation and 1915A. BACKGROUND made the following findings recommendations: Preliminary Review Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon 'Man indisputably meritless legal theory,''' or claims where the "^factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b) (6) . "A motion to dismiss under Rule 12(b) (6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits and of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled Iqbal, to the 129 S. Ct. assumption of 1937, (2009). 1950 truth." Ashcroft v. The Federal Rules of Civil Procedure "require[ ] only ^a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ^give the defendant fair notice of what the . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. satisfy this "labels the and 41, 47 (1957)). Plaintiffs standard with complaints conclusions" elements of a or cause cannot containing only a "formulaic of action." recitation Id. at of 555 (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570, rather than merely "conceivable." facial plausibility when the Id. "A claim has plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)) . se Lastly, while the Court liberally construes pro complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. (Luttig, Carroll, 107 F.3d 241, 243 (4th Cir. 1997) J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Summary of Allegations and Claims On October 8, 1998, the Circuit Court for the County of Arlington, Virginia ("Circuit Court") convicted Richards of "one count each of Grand Larceny and Attempted Grand Larceny and two counts of Uttering." (Compl. 2.) Richards served a portion of his sentence before the Virginia Department of Corrections ("VDOC") released him on probation. On March 30, 2009, law enforcement officers arrested Richards for a probation violation. Subsequently, the Circuit Court again remanded Richards to the custody of the VDOC. Richards now challenges the calculation of his new release date by the VDOC. Richards claims that the VDOC "illegally imprisoned" him "for a period of 457 days beyond the term of confinement of two years and nine months imposed by the Circuit Court for Arlington County, Virginia on December 3, 2010." (Id.) Richards seek credit for 587 days served and "compensatory damages" of $10,500.00 and "punitive damages in (Compl. 15.) a sum to be determined by the jury." Analysis To the extent that Richards seeks "monetary damages stemming from improper incarceration," such an attempt via 42 U.S.C. § 1983 "is legally frivolous under Heck v. Humphrey, 512 U.S. 477 (1994), and related cases." Payne v. Virginia, No. 3:07CV337, 2008 WL 1766665, at *2 (E.D. Va. Apr. 17, 2008). In Heck, the Supreme Court emphasized that civil tort actions are "not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, 512 U.S. at 48 6. The Supreme Court then held that: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized determination, or federal court's corpus, 28 U.S.C. to make such called into question by a issuance of a writ of habeas § 2254. Heck, 512 U.S. at 486-87 (internal footnote omitted). The Supreme Court then required that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." The Id. Supreme related cases at 487. Court summarized that Heck and the teach that: [A] state prisoner's § 1983 action is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (second emphasis added). The first question this Court must ask is whether Plaintiff's claims necessarily imply the invalidity of his Here, current confinement. Richards fails from the injury of pursuant to a state to Heck, allege 512 any the duration of court judgment. U.S. injury at 487. distinct his confinement Id. at 487 n.7. Richards does not articulate, and the Court cannot conceive, how he could prevail on his claim and not simultaneously invalidate the duration of his confinement. See Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck, 512 U.S. at 479, 490 (concluding alleged due process violations were barred); Duronio v. Werlinger, 454 F. App'x 71, 72 (3d Cir. 2011) (holding that, pursuant to Heck, prisoners challenging the execution of their sentences should ordinarily proceed in habeas). Accordingly, Richards's claims that Defendants are not properly executing his sentence necessarily challenges the duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) ("[W]e hold today that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus."). Because success on his claims necessarily implies invalid confinement, under the second portion of the Heck analysis, Richards must demonstrate a successful challenge to his current imprisonment. Heck, 512 U.S. at 487. Richards does not allege that any court or tribunal invalidated the judgment pursuant to which he is currently confined. Id. at 486-87. Thus, Heck and its progeny bar Richards's claim. Accordingly, it is RECOMMENDED that Richards's claim and the action be DISMISSED WITHOUT PREJUDICE as legally frivolous. (May 4, 2012 Report and Recommendation). The Court advised Richards that he could file objections or an amended complaint within fourteen Recommendation. (14) days On May 11, after the entry of the Report and 2012, Richards filed objections to the May 4, 2012 Report and Recommendation. II. STANDARD OF REVIEW "The magistrate makes only a recommendation to this court. The recommendation has responsibility to make court." Estrada v. a no final Witkowski, presumptive determination 816 F. Supp. weight, and remains 408, the with this 410 (D.S.C. 1993) (citing Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing objection of district is objections judge to made." to focus 28 a U.S.C. § magistrate's attention on report 474 written U.S. 140, 147 this objection, (1985) . In Court may the enables the and dispute." Colonial Cir. Life & Accident Ins. adopt Co., Thomas v. absence of a specific a magistrate recommendation without conducting a de novo review. v. "The issues factual those legal that are at the heart of the parties' Arn, 636(b)(1). 416 F.3d judge's See Diamond 310, 316 (4th 2005). III. Richards, RICHARDS'S OBJECTIONS citing Preiser v. Rodriguez, argues that 28 U.S.C. remedy claims. for his 411 U.S. 475 (1973), § 2254 does not provide the sole federal (Objections 2.) Richards claims that this is true because he seeks damages against defendants rather than a speedier (citing Preiser, seeking damages immediate or habeas corpus. not an or immediate 411 . more . U.S. . speedy he release at 494 is from ("If seeking release-the a confinement. state (Id. prisoner something traditional other purpose is than of In the case of a damages claim, habeas corpus is appropriate or available 6 federal remedy.").) Richards states that "[t]he proper calculation of his parole eligibility date, through the proper calculation of his probation revocation sentence, does obtained a cases).) not equate speedier Thus, or to a guarantee immediate argues that he release." Richards, would have (citing Magistrate the (Id. Judge's determination that his challenge to the duration of his sentence falls within the Heck bar is erroneous. In Heck v. Humphrey, the Richards Supreme Court, is mistaken. referencing the Preiser dictum quoted by Richards,1 stated: That statement may not establishing the basis necessarily demonstrates conviction. In be for the that true, the however, when damages claim invalidity of the situation, the claimant can be said to be "attacking . . . the fact or length of . . . confinement," bringing the suit within the other dictum of Preiser: "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." [Preiser, 411 U.S.] at 490, 93 S. Ct., at 1836. In the last analysis, we think the dicta of Preiser to be an unreliable, if not an unintelligible, guide: that opinion had no cause to address, and did not carefully consider, the damages question before us today. 512 U.S. by the duration 477, 481-82 Magistrate of his (1994) Judge, (omissions in original). Richards confinement, unequivocally requesting that As attacks this noted the Court 1 u>If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release . . . .'" (Objection 2 (quoting Preiser, 411 U.S. at 494).) recalculate (Compl. class 74, his 15.) of Thus, claims 81-82 sentence afford Richards's Heck (2005). and bars. claims See Accordingly, him monetary relief. are squarely within Wilkinson v. Richards's Dotson, 544 Objections the U.S. will be overruled. IV. CONCLUSION Richards's Objections will be overruled and the Report and Recommendation will be and the action frivolous. legally Because v. dismissed Court finds Clerk will action States, designation, should even 566 be when that be F.3d Richards's claims prejudice Richards's directed for purposes ("[N]othing in our analysis frivolousness without the the United be the frivolous, disposition of McLean will accepted and adopted. of 28 391, . . . suggests exempted the from dismissal (4th that legally claims to U.S.C. 399 as note are the § 1915(g). Cir. 2009) dismissals for § 1915(g)'s strike is rendered without prejudice."). The Clerk is directed to send a copy of this Memorandum Opinion to Richards. It is / so ORDERED. p Date: y4(^AllNb^L (7f l*?!*^ Richmond, Virginia Robert E. Payne /,/ <fW Senior United States District Judge
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