United States District Court, D. Nebraska
MARIO D. ALFORD, Plaintiff,
DOUG PETERSON and PETE RICKETTS, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Plaintiff's Petition for
Declaratory Judgment Relief (Filing No. 1). For the reasons
explained below, the court will dismiss this action with
is currently confined at the Nebraska State
Penitentiary and serving a sentence of 10 to 36
years' imprisonment as a result of a conviction from the
District Court of Sarpy County, Nebraska, for assault by a
confined person with the habitual-offender enhancement.
(Filing No. 1 at CM/ECF p. 1.)
April 24, 2019, Plaintiff filed a Petition for Declaratory
Judgment pursuant to 28 U.S.C. § 2201, seeking a
declaration that Neb. Rev. Stat. §§ 29-2221, 83-1,
107, and 83-1, 110 are unconstitutional both facially and as
applied to him. (Filing No. 1.) Plaintiff was granted leave
to proceed in forma pauperis on May 23, 2019. (Filing No.
10.) After a delay in receiving payment of Plaintiff's
initial partial filing fee (Filing Nos. 11, 12),
Plaintiff's Petition is now ready for initial review.
“civil action” under 28 U.S.C. § 1915 of the
Prison Litigation Reform Act (“PLRA”) is not
limited to actions challenging a prisoner's conditions of
confinement; rather, courts have consistently applied the
provisions of section 1915 to all manner of civil actions
brought by prisoners, including declaratory-judgment actions.
See, e.g., United States v. Jones, 215 F.3d
467 (4th Cir. 2000) (prisoner's post-conviction motion
for the return of property is a “civil action”
for purposes of provision of PLRA requiring that a prisoner
who brings a civil action or appeal must pay the full filing
fee; that provision is not limited to prisoner civil-rights
cases); Hill v. City of St. Louis, No. 4:14CV1813,
2015 WL 224998, at *1 (E.D. Mo. Jan. 15, 2015) (assessing
initial partial filing fee pursuant to 28 U.S.C. §
1915(b) in prisoner's action for declaratory judgment
pursuant to 28 U.S.C. § 2201).
28 U.S.C. § 1915, the court is required to review
prisoner and in forma pauperis complaints seeking relief
against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is
appropriate. See 28 U.S.C. §§ 1915(e) and
1915A. 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. § 1915(e)(2)(B); 28 U.S.C. §
1915A(b). Pro se plaintiffs must set forth enough factual
allegations to “nudge their claims across the line
from conceivable to plausible, ” or “their
complaint must be dismissed.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843,
849 (8th Cir. 2014) (internal quotation marks and citations
Plaintiff claims the habitual-offender statute, Neb. Rev.
Stat. § 29-2221 (Westlaw 2019), and the statutes
relating to calculation of a prisoner's good time, Neb.
Rev. Stat. §§ 83-1, 107 and 83-1, 110 (Westlaw
2019), violate principles of due process, equal protection,
separation of powers, the Sixth Amendment, and the Ex Post
Facto Clause, among others. Essentially, Plaintiff claims his
conviction and sentence under these statutes were
unconstitutional because he had no notice that he would not
receive good time toward his mandatory-minimum
habitual-offender sentence, and the habitual-offender statute
impermissibly allows the trial court to determine facts that
increase an offender's punishment.
attempts to attack his state conviction indirectly through
the Declaratory Judgment Act, 28 U.S.C. § 2201, when he
should have done so directly through a habeas petition. The
law is well-established that a prisoner cannot seek a
declaratory judgment under 28 U.S.C. § 2201 as to the
validity of a state-court judgment which he is engaged in
serving. Christopher v. State of Iowa, 324 F.2d 180,
181 (8th Cir. 1963). “Any declaration that the criminal
statute under which Plaintiff was convicted is invalid would
equate to a review of the judgment.” Halfacre v.
Arkansas, No. 4:11CV00138, 2011 WL 1042291, at *1 (E.D.
Ark. Mar. 21, 2011) (citing Jones v. Missouri, No.
1:08CV38, 2008 WL 2020318, at *4 (E.D. Mo. May 7, 2008)
(unpublished opinion) (declaratory decree that judgment was
invalid because plaintiff was deprived of right to fair trial
due to state statute would be review and revision of
judgment)). Such review is limited to the habeas sections of
Title 28 of the United States Code. See, e.g.,
Calderon v. Ashmus, 523 U.S. 740, 747 (1998)
(“The disruptive effects of [a declaratory] action . .
. are peculiarly great when the underlying claim must be
adjudicated in a federal habeas proceeding.”) Thus,
Plaintiff's only remedy in federal district court is
the court concludes that Plaintiff has failed to state a
cognizable claim under the Declaratory Judgment Act, and his
Petition must be dismissed for failure to state a claim upon
which relief may be granted.
THEREFORE ORDERED that:
case is dismissed with prejudice, and a separate judgment
will be entered in accordance with this Memorandum and Order.
notice of appeal filed by Plaintiff must be accompanied by
the $505.00 appellate filing fee because Plaintiff will not