United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
pro se plaintiff, an inmate confined at the United
States Penitentiary, Pollock, Louisiana, filed this
proceeding pursuant to 42 U.S.C. § 1983 against the
Department of Corrections and the Probation and Parole Board
complaining that his constitutional rights were violated due
to his time served in state custody despite the fact that he
alleges that “I didn't get time for my state
charge, nor did I violate my parole, so I shouldn't have
state time.” (R. Doc. 1). Because of this state time,
he alleges that the Bureau of Prisons would not give him
appropriate credit for the time served.
to 28 U.S.C. §§ 1915(e) and 1915A, this Court is
authorized to dismiss an action or claim brought by a
prisoner who is proceeding in forma pauperis or is
asserting a claim against a governmental entity or an officer
or employee of a governmental entity if satisfied that the
action or claim is frivolous, malicious or fails to state a
claim upon which relief may be granted. An action or claim is
properly dismissed as frivolous if the claim lacks an
arguable basis either in fact or in law. Denton v.
Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hicks v.
Garner, 69 F.3d 22, 24-25 (5th Cir. 1995).
is factually frivolous if the alleged facts are
“clearly baseless, a category encompassing allegations
that are ‘fanciful,' ‘fantastic,' and
‘delusional.'” Id. at 32-33. A claim
has no arguable basis in law if it is based upon an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which
clearly does not exist.” Davis v. Scott, 157
F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not
only the authority to dismiss a claim which is based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the factual allegations.
Denton v. Hernandez, supra, 504 U.S. at 32.
Pleaded facts which are merely improbable or strange,
however, are not frivolous for purposes of § 1915.
Id. at 33; Ancar v. Sara Plasma, Inc., 964
F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be
made any time, before or after service or process and before
or after an answer is filed, if the court determines that the
action “is frivolous or malicious; fails to state a
claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2) and
Green v. McKaskle, 788 F.2d 1116, 1999 (5th Cir.
Complaint, the plaintiff alleges that he should be given
credit against his federal sentence for time served while
awaiting sentencing. The plaintiff requests that one year and
28 days be credited as time served towards his federal
plaintiff's allegations fail to state a claim cognizable
in this Court. The plaintiff's claim necessarily calls
into question the length of his confinement because a
successful resolution thereof, i.e., credit for time
served, would result in his earlier release. Accordingly,
this claim is subject to dismissal because it may only be
pursued in a habeas corpus proceeding. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a
state prisoner is challenging the very fact or duration of
his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus”).
extent that the plaintiff's allegations may be
interpreted as seeking to invoke the supplemental
jurisdiction of this court over potential state law claims, a
district court may decline the exercise of supplemental
jurisdiction if a plaintiff's state law claims raise
novel or complex issues of state law, if the claims
substantially predominate over the claims over which the
district court has original jurisdiction, if the district
court has dismissed all claims over which it had original
jurisdiction, or for other compelling reasons. 28 U.S.C.
§ 1367. In the instant case, having recommended that the
plaintiff's federal claims be dismissed, the Court
further recommends that the exercise of supplemental
jurisdiction be declined.
recommended that the Court decline the exercise of
supplemental jurisdiction over any potential state law
claims, and that this action be dismissed, with prejudice,
for failure to state a claim upon which relief may be ...