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BROWN v. SMITH

February 4, 1998

DERRICK BROWN, Plaintiff,
v.
DANA SMITH, First Deputy Superintendent, and DONALD SELSKY, Director of Special Housing (individual capacity suit), Defendants.



The opinion of the court was delivered by: LARIMER

 INTRODUCTION

 Plaintiff Derrick Brown, an inmate of a correctional facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket # 1). Plaintiff also filed a motion for a preliminary injunction. (Docket # 4). Plaintiff's request to proceed as a poor person was granted on July 18, 1997. (Docket # 6).

 Plaintiff claims that defendants, Dana Smith, First Deputy Superintendent at Elmira Correctional Facility ("Elmira"), and Donald Selsky, Department of Correctional Services ("DOCS") Director of Special Housing, violated his Fourteenth Amendment due process rights by eliminating by eliminating thirteen months of his good-time credits without affording him a "hearing" which he claims is required under New York law. For the reasons discussed below, the complaint is dismissed pursuant to 28 U.S.C. § 1915, and plaintiffs' motion for a preliminary injunction is denied as moot.

 Plaintiff previously filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court, Southern District of New York, (Brown v. New York State Commissioner of Department of Corrections, 96-CV-5395), raising substantially the same claims as those presented in this case. In July 1996, District Judge Thomas P. Griesa entered an order dismissing plaintiff's habeas corpus petition. The Second Circuit dismissed Brown's appeal on December 27, 1996, denying a certificate of appealability.

 FACTS

 The order of dismissal issued by Judge Grisea in the habeas corpus case has been attached as an exhibit to plaintiff's complaint in the action here in the Western District of New York. From the complaint and its attachments, including Judge Grisea's order of dismissal, the facts relating to plaintiff's claim are as follows:

 On December 13, 1994, plaintiff appeared before the Time Allowance Committee for a hearing pursuant to 7 NYCRR § 261.3(b). At that time, plaintiff's conditional release date was set as April 30, 1995. At the hearing, the Time Allowance Committee recommended a loss of eleven months of good time based on several superintendent hearings, thereby extending plaintiff's conditional release date to March 31, 1996. Additionally, as the result of superintendent's hearings held on August 21, 1995 and September 8, 1995, plaintiff was found guilty of a Tier III disciplinary violation and was sentenced to a ten-month loss of good-time credits. On the basis of the superintendent's hearings, the Time Allowance Committee ratified the ten-month loss of good time, thereby extending plaintiff's release date to January 31, 1997. For reasons not set forth in the complaint, that release date was later extended to April 30, 1997. *fn1"

 Plaintiff alleges in his complaint that the defendants caused a total of thirteen months of his good-time credits to be forfeited and extended his conditional release date to April 30, 1997, without affording him a hearing and other procedural safeguards which he claims are required. Plaintiff requested a hearing before the Time Allowance Committee, and he wrote several letters to defendant Smith, the First Deputy Superintendent at Elmira, complaining about the decision to take away his good-time credits and requesting a hearing. Defendant Smith advised plaintiff that he was not entitled to such a hearing. Smith further informed plaintiff that the Time Allowance Committee's decision to remove a prisoner's good time credit is referred to the Commissioner's Office, and that upon the Commissioner's affirmance of the recommendation, the conditional release date is then extended.

 DISCUSSION

 28 U.S.C. § 1915 mandates that when the court grants a plaintiff in forma pauperis status, as it has done here, it also must conduct an initial screening of the action to ensure that it has a legal basis. A review of plaintiff's complaint demonstrates that it must be dismissed pursuant to 28 U.S.C. § 1915(e). Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).

 Plaintiff seeks injunctive relief and money damages in this civil rights action brought pursuant to 42 U.S.C. § 1983. Because of the nature of the claim, and the prior proceedings commenced by plaintiff relating to his claim, this complaint must be dismissed. First of all, it is clear, and the Supreme Court has held, that a prisoner may not challenge a loss of good-time credits in a § 1983 action. The proper vehicle to challenge loss of good-time credits is in a habeas corpus action. Preiser v. Rodriguez, 411 U.S. 475, 500, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). Additionally, Preiser requires, as a general rule, that in such cases, available state remedies be exhausted before the federal habeas action is commenced. Preiser, 411 U.S. at 500; see also Ellman v. Davis, 42 F.3d 144, 148-49 (2d Cir. 1994) (holding that a prisoner's failure to pursue an appeal in state court is a procedural bar to federal habeas relief unless the petitioner shows "both cause for failing to bring the [state] claim . . . and actual prejudice from the failure to consider his federal claims.").

 In Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), the Supreme Court considered a § 1983 action in which a prisoner sought money damages for unconstitutional acts that led to his arrest and conviction. There, the Supreme Court held:

 
When a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can ...

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