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Billington v. Lowery

May 2, 2006

KEVIN K. BILLINGTON, INMATE #96514, PLAINTIFF,
v.
DONALD LOWERY, STEPHANIE PALMER, JAMI LINN SCHUMAKER, RICK ABELL, CHARLES W. HICKS, AND FREDDRICK TURNER, JR., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Huerfano County Correctional Center in Walsenburg, Colorado, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis, and he has tendered his initial partial filing fee as ordered.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; this action is legally frivolous and thus subject to summary dismissal.

In this action, Plaintiff challenges the constitutionality of his 1990 Illinois state conviction for sexual assault. He names as defendants the Illinois judge who presided over his trial, the Illinois State's Attorney who prosecuted the case, his defense counsel, the Sheriff of Pope County, Illinois, the victim, and a witness. He claims that his conviction, to which he pleaded guilty, was obtained with insufficient evidence of his guilt. Plaintiff states, in supporting documents filed subsequent to the complaint, that Colorado prison authorities (not defendants in this case) are improperly using the 1990 Illinois conviction, of which he is "innocent," to require him to participate in sex offender treatment programs. Through a number of requests for writs of mandamus and injunctive relief, Plaintiff also challenges the state of Colorado's requirement that he must register as a sex offender.

Illinois Conviction

Plaintiff's claims against the trial judge, prosecutor, his counsel, the Pope County Sheriff, the victim, and a witness are barred and cannot be brought in this action.

[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 to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, 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. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). "We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus." Id. at 488. Plaintiff may challenge his conviction in a habeas corpus action pursuant to 28 U.S.C. § 2254, but only after he has presented all of his claims to the Illinois courts. Ordinarily, this will involve raising every issue at trial or in a post-conviction motion, and appealing any adverse decisions to the Illinois Appellate Court and the Illinois Supreme Court. Plaintiff has not shown any indication that his Illinois criminal conviction or sentence has been reversed, expunged, invalidated, or impugned on appeal or by the grant of a writ of habeas corpus. As such, his claims against those involved in his 1990 conviction are Heck-barred.

Even if Plaintiff could properly proceed pursuant to 42 U.S.C. § 1983, his claims are also barred by the statute of limitations. Section 1983 provides a private remedy for protecting constitutional rights. Albright v. Oliver, 114 S.Ct. 807, 811 (1994). "Section 1983 'is not itself a source of substantive rights' but merely provides a 'method for vindicating federal rights elsewhere conferred.'" Albright, 114 S.Ct. at 811 (emphasis added) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In a Section 1983 case, courts look to the personal injury laws of the state where the injury occurred to determine the statute of limitations. Wilson v. Garcia, 471 U.S. 261, 280 (1985). Illinois law provides a two-year statute of limitations for personal injury actions. 735 ILCS 5/13-202. Therefore, Section 1983 claims arising in Illinois are governed by a ...


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