United States District Court, E.D. Arkansas, Western Division
June 24, 2015
CHARLES CONNORS ADC # 147668, Plaintiff
EMILY ABBOTT, Little Rock, Defendants Deputy Prosecuting Attorney, et al.
J. THOMAS RAY, Magistrate Judge.
The following Recommended Disposition ("Recommendation") has been sent to United States District Judge Susan Webber Wright. Any party may file written objections to this Recommendation. Objections must be specific and include the factual or legal basis for disagreeing with the Recommendation. An objection to a factual finding must specifically identify the finding of fact believed to be wrong and describe the evidence that supports that belief.
An original and one copy of the objections must be received in the office of the United States District Clerk within fourteen (14) days of this Recommendation. If no objections are filed, Judge Wright can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may also waive any right to appeal questions of fact.
Plaintiff, Charles Connors, is a convicted prisoner who is currently housed at the Grimes Unit of the Arkansas Department of Corrections ("ADC"). In this pro se § 1983 Complaint, he requested the Court to recalculate the amount of time that he has served in the ADC to include the interval time he spent in jail waiting to be sentenced. Pursuant to the screening function mandated by 28 U.S.C. § 1915A, the Court recommends that the case be DISMISSED, without prejudice.
It is well settled that only challenges to "the circumstances" or "conditions" of confinement" can be brought in a civil rights action filed pursuant to 42 U.S.C. § 1983. Challenges like the one made by Plaintiff in this case go "to the fact or duration of a sentence of imprisonment" and must be brought in a 28 U.S.C. § 2254 habeas action. Muhammad v. Close, 540 U.S.749, 750 (2004); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Williams v. Hopkins, 130 F.3d 333, 335-36 (8th Cir. 1997). Because the Plaintiff is unquestionably challenging the "duration" of his current sentence in the ADC, he must pursue this claim in a § 2254 habeas action.
If Plaintiff intends to proceed with this claim, he must first exhaust all available state court relief before he can properly initiate a § 2254 habeas action in federal court.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's Complaint (Doc. 2), and his claims be DISMISSED, WITHOUT PREJUDICE.
2. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this Recommendation would not be taken in good faith.