The opinion of the court was delivered by: William M. Skretny United States District Judge
This case was transferred to this Court in January of 2006. Pro Se Plaintiff Antonio Brown originally filed this action under 42 U.S.C. § 1983 in the Northern District of New York in 2004. For the reasons that follow, this action is hereby deemed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, the Superintendent of Attica Correctional Facility is deemed the appropriate Respondent, and the Amended Complaint (Docket No. 18) is deemed the Petition to be served in this case.
Plaintiff's Complaint alleged that various Defendants violated his constitutional rights when, in retaliation for his filing lawsuits against other corrections officers, they falsely accused him of possessing a weapon. Plaintiff further alleged that Defendants altered video evidence that would have exonerated him in furtherance of the conspiracy to charge him with possession of a weapon. Plaintiff alleges that he was ultimately convicted of possession of prison contraband as a result of the allegedly falsified evidence and was sentenced to a term of imprisonment of 15 years to life.
Plaintiff's Amended Complaint filed November 18, 2005, and the exhibits attached to Plaintiff's request for appointment of counsel filed August 29, 2005, make clear that Plaintiff's allegations can only be pursued through a Petition for Writ of Habeas Corpus because he is challenging his conviction for possession of prison contraband, which if successful, would impact the duration of his incarceration.
Section 1983 provides an avenue to present federal claims alleging that a person acting under color of state law has deprived an individual of his or her federal constitutional rights. However, when a litigant seeks to challenge the fact or duration of his imprisonment, the "sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed. 2d 439 (1973). The United States Supreme Court recently discussed the parameters of the Preiser exception to § 1983 actions:
"Throughout the legal journey from Preiser to Balisok, the Court has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement--either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody."
Wilkinson, et al. v. Dobson, et al., 544 U.S. 74, 125 S.Ct. 1242, 1247 (2005) (discussing Preiser; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974), Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)).
"These cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation)--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." Wilkinson, 125 S.Ct. at 1248.
Accordingly, because Plaintiff challenges the validity and duration of his confinement, he may proceed only by way of a Petition for Writ of Habeas Corpus.
However, before the Court can convert this § 1983 action to one brought under § 2254, it must provide Plaintiff notice of its intention to recharacterize and an opportunity for Plaintiff to object because a Petition filed under § 2254 is subject to the "second" or "successive" petition restrictions of 28 U.S.C. § 2244(b),*fn1 and such restrictions "might preclude [petitioner] from ever seeking federal review of claims, even meritorious ones, not raised in th[e] petition." Cook v. New York State Div. of Parole, 321 F.3d 274, 281-82 (2d Cir. 2003); see also Castro v. United States, 540 U.S. 375, - - -, 124 S.Ct. 786, 792 (2004)(district courts should not recharacterize motions brought under some other provision to ones brought under § 2255 unless petitioner is advised of the consequences of such recharacterization, i.e., second or successive petition restrictions, and provided opportunity to withdraw petition).
Accordingly, the Court is hereby notifying and advising Plaintiff that it intends to recharacterize this action as one brought pursuant to 28 U.S.C. § 2254, and that this recharacterization means that any subsequent § 2254 petitions will be subject to the restrictions on "second" or "successive" petitions set forth in 28 U.S.C. § 2244(b).*fn2 If the Petition is recharacterized as one brought pursuant to § 2254 it may also be subject to the one year period of limitations set forth in § 2244(d)(1).*fn3 The appropriate Respondent is the Superintendent of Attica Correctional Facility, the facility where Plaintiff is currently incarcerated. If Plaintiff does not file a written submission on or before May 15, 2006, explaining that he objects to the recharacterization of this action as a Petition brought pursuant to § 2254, the Court will recharacterize this § 1983 Complaint as a Petition for Writ of Habeas Corpus brought pursuant to § 2254 and the Respondent must answer the Petition.
The Court notes that this case has been complicated by the fact that neither of the two properly served defendants in this case filed Answers.*fn4 In fact, an Assistant Attorney General of the State of New York entered a Notice of Appearance and Request for Extension of Time to Answer on behalf of all Defendants on November 23, 2005, four months after Defendants Guiney and Case should have filed Answers. The extension request was granted by the Court. Nonetheless, no Answer or other response has been filed on behalf of any defendant. Had Plaintiff been timely informed that his action could proceed only as a habeas corpus petition, he could have filed such petition before his time to file expired in October of 2005,*fn5 almost eleven months after he filed this action.*fn6
IT HEREBY IS ORDERED as follows:
1. This action is deemed an action pursuant to 28 U.S.C. § 2254, and Antonio Brown has until May 15, 2006, to file any objections to conversion of this matter to a ...