Manning v. Swenson , 360 F. Supp. 365 ( 1973 )

FINAL JUDGMENT DISMISSING CIVIL RIGHTS COMPLAINT WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

Plaintiff, a state convict in custody at the Missouri State Penitentiary, seeks leave to file herein in forma pauperis his complaint for equitable and declaratory relief under the federal Civil Rights Act, 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202. The plaintiff seeks an adjudication that his statutory credit for good conduct under Missouri’s three-fourths rule, § 216.355 RSMo (1949), V.A.M.S., and credit for meritorious special service has been forfeited in violation of his federal constitutional rights. Plaintiff’s request to proceed in forma pauperis will be granted.

Regardless of the merits of plaintiff’s contentions, construed in the light most favorable to him under the rule of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, it is determined that a dismissal of the complaint is warranted. Defendant’s counsel has by telephone waived issuance and service of summons.

In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, the Supreme Court of the United States held that when, as here, “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 or more speedy release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” It is therefore clear that this Court is without jurisdiction of plaintiff’s civil rights complaint under § 1983.

Petitioner’s claims for relief in the case at bar were treated separately as a petition for federal habeas corpus in Manning v. Swenson, 360 F.Supp. 362 (Central Division), and dismissed without prejudice for failure to exhaust state remedies. This cause will be dismissed without prejudice to plaintiff’s factual and legal contentions in accordance with the rule of Preiser v. Rodriguez, supra.

It is therefore

Ordered that plaintiff be, and he is hereby, granted leave to proceed in forma pauperis. It is further

Ordered that this cause be, and it is hereby, dismissed without prejudice to the plaintfif’s factual and legal contentions.