United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court, under 28 U.S.C.
§§ 1915(e) and 1915A, on (i) Prisoner's Civil
Rights Complaint, filed November 20, 2017 (Doc.
1)(“Complaint”); and (ii) Prisoner's Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915, filed November 20, 2017 (Doc.
2)(“Balladares Aff.”). For the reasons explained
below, the Court will recharacterize Plaintiff Oscar
Balladares' Complaint as a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, substitute Raymond Smith as the
sole named respondent, deny Balladares' motion to proceed
in forma pauperis, and require Balladares to submit the five
dollar filing fee within thirty days of the date of this
who is proceeding pro se, is incarcerated at the Lea County
Correctional Facility, in Hobbs, New Mexico. In his
Complaint, Balladares alleges that Defendants Rosie Jaramillo
and Benjamin Lujan deprived him of his right to due process
of law under the Fourteenth Amendment of the Constitution of
the United States of America during a disciplinary
proceeding, which resulted in the loss of his good time
credits. See Complaint ¶¶ 1-5, at 7.
Balladares seeks a declaration that Jaramillo and Lujan
violated his rights under the Fourteenth Amendment, dismissal
of the misconduct report, and restoration of his good time
credits. See Complaint at 5.
action challenging “prison disciplinary proceedings,
such as the deprivation of good-time credits is not
challenging prison conditions, it is challenging an
action affecting the fact or duration of the petitioner's
custody.” McIntosh v. U.S. Parole Comm'n,
115 F.3d 809, 812 (10th Cir. 1997)(emphasis in original).
“[A] prisoner who challenges the fact or duration of
his confinement and seeks immediate release or a shortened
period of confinement must do so through an application for
habeas corpus.” Palma-Salazar v. Davis, 677
F.3d 1031, 1035 (10th Cir. 2012). Therefore, “[t]he
sole remedy in federal court for a prisoner seeking
restoration of good-time credits is a writ of habeas
corpus” under 28 U.S.C. § 2241. Edwards v.
Balisok, 520 U.S. 641, 643-44 (1997). See Brown v.
Smith, 828 F.2d 1493, 1495 (10th Cir. 1987)(“If
[the petitioner] can show that his due process rights were
violated in the subject disciplinary proceedings, then §
2241 would be the appropriate remedy to use to restore his
good time credits.”).
request for declaratory relief also is not cognizable under
42 U.S.C. § 1983. In Heck v. Humphrey, 512 U.S.
477 (1994), the Supreme Court of the United States held that
a § 1983 complaint must be dismissed if “a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence . . . unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” 512 U.S. at 487. The
Heck v. Humphrey doctrine applies to requests for
declaratory relief that would imply the invalidity of a
prison disciplinary proceeding or the punishment imposed.
See Edwards v. Balisok, 520 U.S. at 648 (holding
that the Heck v. Humphrey doctrine bars the
plaintiff's § 1983 claim seeking a declaration that
the procedures used in his disciplinary proceeding violated
his Fourteenth Amendment due process rights). The declaratory
relief sought by Balladares necessarily would imply the
invalidity of his disciplinary proceeding and the punishment
imposed, and, therefore, Balladares' claims are
“not cognizable under § 1983.” Edwards
v. Balisok, 520 U.S. at 648.
courts sometimes will ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion
in order to place it within a different legal category,
” so as to “avoid an unnecessary dismissal”
or “to create a better correspondence between the
substance of a pro se motion's claims and its underlying
legal basis.” Castro v. United States, 540
U.S. 375, 791-92 (2003). Indeed, “[a] pro se
litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). In determining the nature of a
pro se litigant's claims, the Court is guided by the
relief sought. See Farrell v. Ramsey, 28 F.
App'x 751, 753-54 (10th Cir. 2001)
(unpublished)(holding that the district court should
have construed the plaintiff's civil rights complaint as
a petition for writ of habeas corpus, “because it was
clear from his complaint and supplemental complaint that he
did not seek money damages but rather only relief from the
execution of his sentence”). Because the relief sought
in Balladares' civil rights Complaint is available only
in a § 2241 proceeding, the Court will recharacterize
his Complaint as a § 2241 writ of habeas corpus.
§ 2241 habeas proceeding, “the default rule is
that the proper respondent is the warden of the facility
where the prisoner is being held.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004). Balladares is
incarcerated at the Lea County Correctional Facility and,
therefore, Smith, the Lea County Correctional Facility
warden, will be substituted as the sole named respondent.
filing fee for this habeas proceeding is five dollars.
See 28 U.S.C. § 1914(a). According to the
financial affidavit and information that Balladares
submitted, he has sufficient funds available to prepay the
five dollar filing fee. See Balladares Aff at 2. The
Court will, therefore, deny Balladares' motion to proceed
in forma pauperis.
must pay the five dollar filing fee within thirty days of the
date of this order's entry or show cause for his failure
to do so. Failure timely to pay the filing fee, or to show
cause, may result in the dismissal of this action without
IS ORDERED that: (i) the Plaintiffs Prisoner's
Civil Rights Complaint, filed November 20, 2017 (Doc. 1) is
recharacterized as a petition for writ of habeas corpus under
28 U.S.C. § 2241; (ii) the Clerk of the Court is
directed to substitute Raymond Smith, warden at Lea County
Correctional Facility, as the sole named respondent; (iii)
Plaintiff s Prisoner's Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915, filed November 20,
2017 (Doc. 2) is denied; and (iii) the Plaintiff must submit
the five dollar filing fee, or show cause for his failure to
do so, within thirty days of the date of entry of this order.
Farrell v. Ramsey, is an
unpublished Tenth Circuit opinion, but the Court can rely on
an unpublished Tenth Circuit opinion to the extent its
reasoned analysis is persuasive in the case before it.
See 10th Cir. R. 32.1(A), 28 U.S.C.
(“Unpublished opinions are not precedential, but may be
cited for their persuasive value.”). The Tenth Circuit
has stated: “In this circuit, unpublished orders are
not binding precedent, . . . and . . . citation to
unpublished opinions is not favored . . . . However, if an
unpublished opinion . . . has persuasive value with respect
to a material issue in a case and would assist the court in
its disposition, we allow a citation to that decision.”
United States v. Austin, 426 F.3d 1266, 1274 (10th