Leslie Neblett represented by Leslie Neblett PRO SE
Concord Federal Probation other U.S. Probation & Pretrial Services District of New Hampshire, Paul Daniel U.S. Probation Officer, District of New Hampshire, Daniel Gildea Senior U.S. Probation Officer, District of New Hampshire
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
Margaret J. Kravchuk U.S. Magistrate Judge
Plaintiff Leslie Neblett, a federal probationer, complains of selective prosecution, based on racial bias, in relation to the recent imposition of a special condition requiring that he reside in a halfway house. He sues federal probation officers Daniel Gildea and Paul Daniel, as well as the U.S. Probation & Pretrial Services Office for the District of New Hampshire, which he calls “Concord Federal Probation.” This case was transferred from the District of New Hampshire because the judges of that district have all entered orders of recusal concerning the civil action. On December 19, 2013, the Court granted Neblett’s motion to proceed in forma pauperis. However, Neblett’s complaint is subject to screening pursuant to 28 U.S.C. § 1915(e)(2), 28 U.S.C. § 1915A, and District of New Hampshire Local Rule 4.3. The issue is whether Neblett’s Bivens-style equal protection claim against federal officers is subject to the rule of Heck v. Humphrey, 512 U.S. 477 (1994), or a similar rule precluding maintenance of a civil action challenging the legitimacy of a federal sentencing proceeding that modified the conditions of the plaintiff’s release to impose halfway-house confinement. For reasons that follow, I recommend that the Court dismiss the action without prejudice.
The Screening Duty
Federal law imposes on district courts the duty to review at the earliest opportunity any civil complaint “in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In its review, the court is to “identify cognizable claims” and otherwise “dismiss the complaint, or any portion of the complaint, ” to the extent that it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). Similarly, Congress has directed that the district courts “shall” dismiss “at any time” cases or claims proceeding in forma pauperis, if the court determines that the action is frivolous, malicious, fails to state a claim, or seeks money damages from an immune defendant. Id. § 1915(e).
Dismissal in this case is appropriate because the Court presently lacks subject matter jurisdiction, which effectively renders the action “frivolous.” For reasons that follow, Neblett’s action is simply “not cognizable” at this juncture and is therefore subject to sua sponte dismissal without prejudice. White v. Gittens, 121 F.3d 803, 806-807 (1st Cir. 1997) (characterizing the holding of Heck v. Humphrey as generating a jurisdictional obstacle, vacating district court’s dismissal on the merits, and remanding with instruction to dismiss without prejudice an action challenging state parole board’s revocation of the plaintiff’s parole).
Allegations and Parallel Proceedings
Neblett complains that the defendants discriminatorily charged him with a probation violation based on racial bias and have thereby achieved an order directing him to a halfway house. Neblett alleges that he met a white probationer at the halfway house who said that Officer Gildea did not similarly seek to modify that probationer’s terms of release when Gildea learned the probationer had snorted heroin. Neblett says he confronted Gildea with this and that Gildea told him that charging a probation violation is a matter of discretion. Neblett also alleges that Gildea told Neblett he looks like a drug dealer, expressed a negative inference about why Neblett had a thousand dollars on his person, profiled Neblett as a drug dealer in a hearing before Judge DiClerico, and threatened Neblett that he would not last long at the halfway house before they put him in jail. Neblett wants an investigation of the matter and asks for $2.5 million dollars. Neblett says he has met some excellent probation officers but believes that Gildea is a racist. He also alleges that Paul Daniel has directed racially offensive comments at him.
A review of the criminal docket reflects that the petition requesting the modification of the terms of Neblett’s release was signed by both Gildea and Daniel. (See Case No. 1:10-cr-00102-JD, ECF No. 72.) The Court granted the motion and amended its judgment on November 20, 2013. (ECF No. 80.) On November 26, 2013, Neblett filed a motion for reconsideration. (ECF No. 81.) Most recently, on January 7, 2014, Neblett filed a motion for stay of the amended sentence pending resolution of his motion for reconsideration. (ECF No. 91.) Based on information provided therein, Neblett has not yet reported to the halfway house, but a bed is now available and the defendants have instructed him to report to the facility on January 9, 2014. Because Neblett also filed a notice of appeal, which he also sought to stay pending decision on his motion for reconsideration (ECF Nos. 82 & 83), the Court of Appeals has ordered that Neblett provide it with a status report by January 22, 2014, of any action taken by this Court on the motion for reconsideration (ECF No. 90).
Neblett’s complaint is subject to screening because he is a prisoner who seeks redress from government employees and because he is proceeding in forma pauperis. At present, the allegations in Neblett’s complaint do not support the maintenance of a civil claim because his equal protection allegations are subject to review and, if necessary, fact finding by the sentencing court. Should the sentencing court determine that Neblett’s ...