Craig Cook v. Thurbert Baker , 139 F. App'x 167 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15021
JUNE 23, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-02275-CV-BBM-1
CRAIG COOK,
Plaintiff-Appellant,
versus
THURBERT BAKER,
JAMES DONALD, et al., in their
individual capacity of his/her duties,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(June 23, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Craig Cook, a Georgia state prisoner, appeals pro se from the district court
order dismissing as frivolous his 42 U.S.C. § 1983 action because Cook’s claim
attacks his conviction and the duration of his sentence rather than the conditions of
his confinement and thus should have been filed pursuant to 28 U.S.C. § 2254.
Construed liberally, Cook seems to be challenging the propriety of his conviction
and sentence as well as the parole board’s retroactive application of a policy
allegedly requiring Cook to serve ninety percent of his punishment.
Under 28 U.S.C. § 1915A, the district court shall review, as soon as
possible, a prisoner’s complaint in a civil action against a government entity to
identify cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint is frivolous, malicious, or fails to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(a),(b). Because §§ 1915A(b)(1)
and 1915(e)(2)(B)(i) both require the district court to review a prisoner’s civil
complaint and dismiss the case if it finds the claims frivolous, it stands to reason
that the standard of review is the same under both provisions.1 Thus, because we
review for abuse of discretion a district court’s decision to dismiss a complaint,
brought in forma pauperis, as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), we
will also review for abuse of discretion the district court’s dismissal of a complaint
1
The difference between the two statutes is that § 1915A applies to all civil complaints
filed by prisoners, whereas § 1915(e)(2)(B)(i) is applicable only if the prisoner has been granted
leave to proceed IFP. Compare 28 U.S.C. § 1915A(a) and § 1915(a), (e)(2).
2
as frivolous under 28 U.S.C. § 1915A. See Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002), cert. denied, 124 S.Ct. 1038 (2004). Moreover, an action is
considered frivolous if it is "without arguable merit either in law or fact." Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
A state prisoner seeking to challenge his conviction or confinement files a
“petition for writ of habeas corpus” pursuant to § 2254. 28 U.S.C. § 2254(a).
Claims challenging the fact of conviction or duration of the sentence “fall within
the ‘core’ of habeas corpus,” while claims challenging the conditions of
confinement may be brought in a civil rights action under 42 U.S.C. § 1983.
Nelson v. Campbell, 541 U.S. 637, ___, 124 S.Ct. 2117, 2122, 158 L.Ed.2d 924(2004); see also Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36
L.Ed.2d 439 (1973) (holding that “when 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 speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus”). Thus, a civil
rights action under § 1983 is the appropriate relief when a state prisoner
constitutionally challenges the conditions of his confinement, but not the fact or
length of his incarceration. Preiser, 411 U.S. at 499, 93 S.Ct. at 1841.
3
An action under § 2254 may be filed in either “the district court for the
district wherein such person is in custody or in the district court for the district
within which the State court was held which convicted and sentenced him.” 28
U.S.C. § 2441(d); see also Dobard v. Johnson,749 F.2d 1503, 1504 (11th Cir.
1985) (noting that a state prisoner may file a petition for habeas corpus in the
federal judicial district in which he is in custody or in the district in which the
court that convicted and sentenced him was located).
The district court properly dismissed Cook’s 42 U.S.C. § 1983 action as
frivolous pursuant to 28 U.S.C. § 1915A because Cook’s exclusive remedy for his
claim is to file a habeas corpus petition pursuant to 28 U.S.C. § 2254 since his
claim challenges the propriety of his conviction and sentence, as well as the
execution of his sentence, rather than the conditions of his confinement.2
For the above stated reasons, the district court’s dismissal of Cook’s
complaint is affirmed.
AFFIRMED.3
2
Cook’s argument assailing the Georgia Board of Pardons and Parole’s adoption of the
“90%” policy adopted in 1997, and applied retroactively, has been rendered moot by the Board’s
decision abandon the policy. See News Release, Georgia Board of Pardons and Parole, March
10, 2005.
3
Cook’s motions for entry of default judgment and summary judgment are denied.
4