United States District Court, S.D. Mississippi, Southern Division
ORDER OF DISMISSAL
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court sua sponte. Pro se Plaintiff Frank
Daughtery is an inmate of the Mississippi Department of
Corrections and he brings this Complaint pursuant to 42
U.S.C. § 1983. The only named Defendant is the State of
Mississippi. The Court, having liberally construed
Daughtery's Complaint  and Response  in
consideration with the applicable law, finds that this case
should be dismissed.
is incarcerated at the South Mississippi Correctional
Institution in Leakesville, Mississippi. He is serving a term
of imprisonment for two felony convictions imposed by the
Walthall County Circuit Court. See Daughtery v.
Banks, No. 2:17-cv-193-KS-FKB (S.D.Miss. filed Dec. 1,
2017) (Habeas Corpus Case). In this Complaint, Daughtery
appears to assert claims regarding the validity of his
convictions. As relief, he states that he is “asking .
. . to get back in court [t]o get some of the 16 years
back.” Compl.  at 5.
review of the Complaint, the Court entered an Order advising
Daughtery that the State of Mississippi is not a person
within the meaning of § 1983. See Order .
The Order provided Daughtery “with an opportunity to
name a viable Defendant prior to the dismissal of this
case.” Id. at 1. In addition, the Order 
directed Daughtery to specifically state how each named
Defendant violated his constitutional rights. Id.
Daughtery filed a Response  wherein he makes statements
related to his conviction, states that he has literacy
issues, states that the Warden's name at SMCI is Mills,
and appears to state that he does not want this case
dismissed. Resp.  at 1.
is incarcerated and proceeding in forma pauperis.
See Order . The Prison Litigation Reform Act, 28
U.S.C. § 1915(e)(2) (as amended), applies to prisoners
proceeding 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.” Since
Daughtery is a prisoner proceeding in forma
pauperis, his Complaint is subject to the case-screening
procedures set forth in 28 U.S.C. § 1915 (e)(2).
1983 provides, in pertinent part, “[e]very
person who, under color of [state law], subjects . .
. any citizen . . . thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C.
§ 1983 (emphasis added). The State of Mississippi is not
amenable to suit under this statute, because “a State
is not a person within the meaning of § 1983.”
Will v. Mich. Dep=t of State Police, 491 U.S. 58, 64
stated above, the Court advised Daughtery that the State of
Mississippi is not a viable Defendant in a § 1983 case
and further provided Daughtery with the opportunity to name
any other Defendants. See Order . Daughtery
failed to do so. Even if the Court were to liberally construe
Daughtery's mention of Warden Mills in his Response 
as an attempt to name Mills as a Defendant, Daughtery fails
to assert any allegations against Mills. The liberality
applied to a pro se litigant's pleadings does not allow
the Court “to conjure up unpled allegations.”
McFadden v. Lucas, 713 F.2d 143, 147 n.4 (5th Cir.
1983) (citing Slotnick v. Staviskey, 560 F.2d 31, 33
(1st Cir. 1977)). Therefore, this § 1983 action will be
Court also finds that to the extent Daughtery is seeking a
speedier release from incarceration, his request must be
pursued through a petition for writ of habeas corpus. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding
habeas corpus is “sole federal remedy” for
inmate's challenge to the duration of his confinement
seeking immediate release or a speedier release from
imprisonment); Jackson v. Torres, 720 F.2d 877, 879
(5th Cir. 1983) (reiterating that challenge to duration of
prisoner's confinement is a habeas corpus matter).
Daughtery is currently litigating a habeas corpus case in
this Court. See Daughtery v. Banks, No.
2:17-cv-193-KS-FKB (S.D.Miss. Dec. 1, 2017). Therefore, any
habeas corpus claims presented in this § 1983 case, will
be dismissed without prejudice to Daughtery's pursuit of
these claims in his pending habeas corpus case.
Court has considered the pleadings and applicable law. For
the reasons stated, Daughtery's § 1983 claims
against Defendant State of Mississippi will be dismissed with
prejudice. Any habeas corpus claims that Daughtery may be
asserting in this § 1983 case will be dismissed without
IS, THEREFORE, ORDERED AND ADJUDGED that,
Daughtery's § 1983 claims against Defendant State of
Mississippi should be, and are hereby, DISMISSED WITH
IS, FURTHER, ORDERED AND ADJUDGED that, any habeas
corpus claims Daughtery may be asserting in this § 1983
case are DISMISSED WITHOUT PREJUDICE to
Daughtery's pursuit of these claims in his pending habeas