United States District Court, D. Nebraska
DEON A. STEWART, Plaintiff,
KELLY STEENBOCK, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Deon Stewart, who is incarcerated at the Lincoln Correctional
Center, has been granted leave to proceed in forma pauperis.
(Filing 7.) The court now conducts an initial review of
Plaintiff's Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A.
SUMMARY OF COMPLAINT
brings this 42 U.S.C. § 1983 action requesting money
damages and a “resentenc[ing] . . . for . . . less
time.” (Filing 1 at CM/ECF pp. 6-7.) He alleges that
the defendant, the Douglas County Public Defender, failed to
raise his insanity at his plea hearing, his presentence
investigation was not complete at the time of his plea, and
the “presentence investigator” was not in court
when Plaintiff pled guilty. Plaintiff says his lawyer and the
judge could have given him “a better deal.”
(Filing 1 at CM/ECF p. 6.)
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
allegations all relate to errors committed in his plea
hearing which led to a sentence that Plaintiff believes is
too long. A judgment in favor of Plaintiff on his § 1983
claims would “necessarily imply the invalidity of his .
. . sentence.” Heck v. Humphrey, 512 U.S. 477,
487 (1994). In order to recover damages for an 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 §
Id. at 486-87. See also Muhammad v. Close,
540 U.S. 749, 750 (2004) (challenges “to particulars
affecting [a sentence's] duration are the province of
habeas corpus” (citing Preiser v. Rodriguez,
411 U.S. 475, 500 (1973)); further, where success of a §
1983 damages action would question the duration of a
sentence, “the litigant must first achieve favorable
termination of his available state, or federal habeas,
opportunities to challenge the underlying conviction or
Plaintiff has failed to allege that his 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,
Plaintiff's claims must be dismissed without
prejudice pursuant to Heck v. Humphrey, 512
U.S. 477 (1994), for failure to state a claim upon which
relief can be granted.
case is dismissed without prejudice pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994), for failure to state a