United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
Thomas Ford, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The action proceeds on the PARTICULARIZED
COMPLAINT (ECF No. 16) and Ford's Motion To Show Cause
Good Time Days Credited Is In Compliance With 42 U.S.C.
§ 1983, When Damage Claims Are Before The Court
("Response to Show Cause Order, '' ECF No. 21) .
The matter is before the Court for evaluation pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A.
to the Prison Litigation Reform Act (``PLRA") this Court
must dismiss any action filed by a prisoner if the Court
determines the action (1) ``is frivolous" or (2) ``fails
to state a claim on which relief may be granted." 28
U.S.C. § 1915(e)(2); see 28 U.S•C. §
1915A. The first standard includes claims based upon ``an
indisputably meritless legal theory," or claims where
the ``factual contentions are clearly baseless,"
Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992)
(quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)). The second standard is the familiar standard for a
motion to dismiss under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true
and the complaint is viewed in the light most favorable to
the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and ``a court considering a motion to
dismiss can choose to begin by identifying pleadings that,
because they are no ` more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require  only `a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to `give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted) . Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level," id.
(citation omitted), stating a claim that is "plausible
on its face," id. at 570, rather than merely
"conceivable." Id. "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citing Bell Atl.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
the plaintiff must "allege facts sufficient to state all
the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States,
289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court
liberally construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not
act as the inmate's advocate, sua sponte
developing statutory and constitutional claims the inmate
failed to clearly raise on the face of his complaint. See
Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997)
(Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Memorandum Order entered on December 6, 2018, the Court
directed Ford to file a particularized complaint. The Court
noted that the
eighty-eight-page Complaint contains, for example, pages of
impossible to follow calculations, conspiracy theories, and
rambling and nonsensical allegations stemming from his
criminal proceedings, his incarceration, the calculation of
his sentence, and various cases he has brought while
incarcerated. Plaintiff names institution staff, "Court
of Legal," attorneys and various judges who have handled
his prior cases.
No. 14, at 2-3.) Ford submitted a Particularized Complaint.
(ECF No. 16.) Upon the Court's review of the
Particularized Complaint, it appeared that Ford attacked both
the duration of his sentence and sought damages. Ford failed
to demonstrate why he may bring such action pursuant to
by Memorandum Order entered on March 4, 2019, the Court
directed Ford, within fourteen days of the date of entry
thereof, to show good cause why he should be permitted to
proceed with the current action under § 1983. (ECF No.
19, at 1-2.) Ford submitted his Response to Show Cause Order.
(ECF No. 21.) However, this submission is again a rambling
narrative that alleges a conspiracy and criminal activity
such as mail fraud and racketeering with regard to his good
conduct credit calculation and legal update sheets. As
discussed below, to the extent that Ford challenges the
calculation of his sentence and good conduct credit earning
level, such a claim must be brought pursuant to a petition
for writ of habeas corpus. Ford's request for damages and
the remaining allegations of criminal activity by the
Defendants are not cognizable in § 1983.
SENTENCE CHALLENGE MUST BE BROUGHT IN HABEAS
he settled rules [provide] that habeas corpus relief is
appropriate . . . when a prisoner attacks the fact or
duration of confinement, see Preiser v. Rodriguez,
411 U.S. 475 (1973); whereas, challenges to the conditions of
confinement that would not result in a definite reduction in
the length of confinement are properly brought" by some
other procedural vehicle, including a 42 U.S.C. § 1983
complaint. Olajide v. B.I.C.E., 402 F.Supp.2d 688,
695 (E.D. Va. 2005) (emphasis omitted) (internal parallel
citations omitted) (citing Strader v.
Troyƒ 571 F.2d 1263, 1269 (4th Cir.
1978)). Thus, any challenge to the duration of his sentence
must be brought pursuant to a habeas corpus petition under 28
U.S.C. § 2254. However, a plaintiff may not seek
monetary damages under § 2254, nor are monetary damages
appropriate under 42 U.S.C. § 1983 where the plaintiff
is attacking the duration of his sentence. See Wilkinson
v. Dotson, 544 U.S. 74, 81-82 (2005) (``[A] state
prisoner's § 1983 action is barred ... no matter the
relief sought (damages or equitable relief), no matter the
target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)-if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration."
Response to Show Cause Order, Ford seemingly alleges that he
should be allowed to challenge the improper calculation of
his sentence, his good conduct credit earning level, and his
projected release date, by way of § 1983 because he
seeks monetary damages. However, Ford's claims for
monetary damages are barred by Heck v. Humphrey, 512
U.S. 477 (1994), because he seeks damages related to the
length of his sentence and he has not demonstrated that his
conviction or sentence has been invalidated. In
Heck, the Supreme Court emphasized that civil tort
actions are ...