United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DISMISSING
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court, sua sponte, for consideration of
dismissal. Plaintiff Donovan Jamal Willingham is an inmate of
the Mississippi Department of Corrections (MDOC) incarcerated
at the Mississippi State Penitentiary, Parchman, Mississippi.
Willingham filed the instant civil action pursuant to 42
U.S.C. § 1983. Willingham requests that he be released
from prison and that he receive monetary damages as relief.
Compl.  at 4.
reviewed Willingham's Complaint , Willingham's
Response , and relevant legal authority, the Court has
determined that this civil action should be dismissed. I.
Facts and Procedural History Willingham states that on
January 4, 2015, he was arrested by the Biloxi Police
Department for receiving stolen property. Compl.  at 4.
That arrest by the Biloxi Police Department resulted in
Willingham's probation being revoked. Id.
Willingham claims that the charges used to revoke his
probation were dismissed because the Grand Jury did not issue
a true bill. Id.
Court directed Willingham to state if his probation
revocation has been reversed or invalidated. Order  at 1.
As directed by the Court's Order , Willingham filed a
Response stating that his probation revocation has not been
reversed or invalidated. See Pl.'s Resp.  at
1. II. Analysis The Prison Litigation Reform Act, 28 U.S.C.
§ 1915(e)(2) (as amended), applies to prisoner
proceedings in forma pauperis and provides that
“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 such relief.” Because
Willingham was granted in forma pauperis status,
see Order  at 1, Section 1915(e)(2) applies to
the instant case.
Monetary damages The United States Supreme Court has held
that a 42 U.S.C. § 1983 claim for monetary damages which
essentially challenges a conviction or imprisonment is not
cognizable until a plaintiff's conviction or alleged
unconstitutional imprisonment has been “reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.” Heck
v Humphrey, 512 U.S. 477, 486-87 (1994).
Willingham's claim for monetary damages based on his
parole revocation and serving an allegedly unlawful period of
incarceration, see Compl.  at 5, implicates the
validity of the revocation hearing and therefore
Heck applies. See Johnson v. Murray, 420
Fed.Appx. 327, 328 (5th Cir. 2011) (holding that
Heck applies to claims for monetary damages for
“revocation of [Plaintiff's] parole and his
continued incarceration”). Willingham cannot pursue
this § 1983 civil action until he satisfies the
conditions set out in Heck. See Id. (citing
Heck, 512 U.S. at 486-87; McGrew v. Tex. Bd. of
Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.
1995)). Willingham has failed to demonstrate that his parole
revocation or alleged unconstitutional imprisonment meets the
requirements set forth in Heck. See
Pl.'s Resp.  at 1. Consequently, the Court finds that
Willingham cannot maintain these claims, and this § 1983
civil action must be dismissed. See id.
Request for release from incarceration As for
Willingham's request for release, the Court finds that
such a request relates to the fact of his confinement.
Willingham must pursue claims that affect his eligibility
for, or entitlement to, accelerated release through habeas
corpus. See Carson v. Johnson, 112 F.3d 818, 820
(5th Cir. 1997) (citing Cook v. Tex. Dep't of Crim.
Just. Planning Dep't., 37 F.3d 166, 168 (5th Cir.
1994)); see also Wilkinson v. Dotson, 544 U.S. 74,
78 (2005) (quoting Preiser v. Rodriguez, 411 U.S.
475, 489 (1973)) (holding that a “prisoner in state
custody cannot use a § 1983 action to challenge
‘the fact or duration of his confinement'”).
Complaint asserts both habeas and § 1983 claims, the
Court, if possible, should separate the habeas and §
1983 claims. See Serio v. Members of La. State Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987). A review
of the Court's records reveals that Willingham filed a
habeas petition challenging the revocation of his probation
and his petition for habeas relief was denied. See
Willingham v. State, No. 1:17-cv-174-HSO-MTP (S.D.Miss.
May 15, 2018). Because a habeas petition filed by Willingham
concerning the revocation of his probation would be a
successive petition pursuant to 28 U.S.C. § 2244
requiring prior authorization of the United States Court of
Appeals for the Fifth Circuit before this Court could
consider the petition, see 28 U.S.C. §
2244(a)(3)(A), and Willingham has not presented such
authorization by the Fifth Circuit, the Court will not
separate Willingham's habeas claims. Willingham's
habeas claims therefore will be dismissed without prejudice
because of this Court's lack of jurisdiction to consider
these claims. III. Conclusion Willingham cannot state a 42
U.S.C. § 1983 claim for monetary damages which
essentially challenges his alleged unconstitutional
imprisonment until the Heck requirements are met.
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.
1996). Thus, this § 1983 civil action will be dismissed
with prejudice as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(i). See Hamilton v. Lyons, 74 F.3d 99,
103 (5th Cir. 1996) (finding Heck-barred claims are
legally frivolous). Because this Court lacks jurisdiction to
consider Willingham's habeas claims, these claims will
not be separated into a new habeas civil action, but will be
dismissed without prejudice.
this § 1983 civil action is dismissed as frivolous, it
will be counted as a “strike.” See 28
U.S.C. § 1915(g). If he receives “three strikes,
” Willingham can be denied in forma pauperis
status and required to pay the full filing fee to file a
civil action or appeal. See id.
IS, THEREFORE, ORDERED AND ADJUDGED that
Willingham's civil action filed pursuant to 42 U.S.C.
§ 1983 is DISMISSED WITH PREJUDICE as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This
dismissal will count as a “strike” in accordance
with the Prison Litigation Reform Act. See 28 U.S.C.
IS, FURTHER, ORDERED AND ADJUDGED that
Willingham's habeas claims are DISMISSED WITHOUT
PREJUDICE for this Court's lack of jurisdiction
to consider these claims pursuant to 28 U.S.C. §