Opinion
No. 3:03-CV-1414-D
December 3, 2003
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. FACTUAL BACKGROUND
Plaintiff has filed this complaint pursuant to 42 U.S.C. § 1983. He claims that Respondent has incorrectly determined the length of his sentence by applying the 1996-2001 parole guidelines to his sentence. Plaintiff states he was convicted in 1990, therefore the application of these guidelines is unlawful and he has completed his sentence.
II. DISCUSSION
1. Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . 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 [and] [o]n 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 upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Applying the screening procedures to Plaintiff's complaint, the Court finds the complaint should be dismissed.
2. Statute of Limitations
A civil rights action under 42 U.S.C. § 1983 is governed by a two-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 250 (1989) (stating federal court should look to general personal injury limitations period of forum state); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir. 1990) (finding limitations period in Texas is two years). The latest date that Plaintiff states he learned of the alleged violation of his civil rights was January 18, 2001. See United States Magistrate Judge's Questionnaire, Answer 3. He did not file his complaint, however, until June 11, 2003. Plaintiff's claims are therefore untimely and should be dismissed.
3. Sentence determination
Plaintiff alleges he has served his sentence because his good time added to his flat time equal his competed sentence. See Magistrate Judge's Questionnaire, Answer No. 1. Plaintiff's claim is cognizable only in the context of a habeas corpus action pursuant to 28 U.S.C. § 2254. See Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (finding that where a petitioner attacks the duration of confinement, "the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983."); see also, Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (stating a petition for writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement). Plaintiff claims should therefore be dismissed.
RECOMMENDATION
The Court recommends that Plaintiff's complaint pursuant to 42 U.S.C. § 1983 be dismissed.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).