United States District Court, W.D. Louisiana, Alexandria Division
Anthony Paul Deshotel, Plaintiff, Pro se, Winnfield, LA.
JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE. JUDGE DRELL.
REPORT AND RECOMMENDATION
JAMES D. KIRK, UNITED
STATES MAGISTRATE JUDGE.
Pro se plaintiff Anthony Paul Deshotel filed the instant civil rights complaint in forma pauperis and pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate in the custody of Louisiana's Department of Corrections (LDOC) and is currently incarcerated at the Winn Correctional. Center in Winnfield, Louisiana. He names as defendants Charles L. Bull, Jr., District Attorney Michael Cassidy, and Judge C. Steve Gunnell of the 31st Judicial District Court. Plaintiff seeks monetary damages for an allegedly illegal conviction and sentence.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.
Plaintiff alleges that, on September 17, 2012, he was sentenced to five years of imprisonment for the offense of theft of property over five hundred dollars ($500.00). Plaintiff states that he was never formally charged. Thus, he claims that the conviction and/or sentence are illegal.
Law and Analysis
When a prisoner sues an officer or employee of a governmental entity pursuant to 42 U.S.C. § 1983, the court is obliged to evaluate the complaint and dismiss it without service of process if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. Likewise, Section 1915(e)(2)(B) provides for screening of all complaints filed in forma pauperis .
A civil rights complaint fails to state a claim upon which relief can be granted if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations of the complaint. Of course, in making this determination, the court must assume that all of the plaintiff's factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
Courts are not only vested with the authority to dismiss a claim based on an indisputably meritless legal theory, but are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
To the extent that plaintiff is challenging the conviction itself, a habeas corpus petition filed pursuant to 28 U.S.C. § 2254, rather than a civil rights petition under § 1983, is the proper procedure for a state prisoner challenging the fact or duration of his confinement. See Cook v. Texas Dept. of Criminal Justice Planning Dept., 37 F.3d 166, 168 (5th Cir.1994).
However, Plaintiff should note that before filing a federal habeas corpus action, a state prisoner must exhaust available state court remedies as to each and every ground upon which he claims entitlement to habeas corpus relief. See Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987), cert. denied, 484 U.S. 956, 108 S.Ct. 352, 98 ...