IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

William E. Cargile, :

 Plaintiff, : Case No. 2:11-cv-1150

 v. :

 JUDGE MICHAEL H. WATSON

Ohio Adult Parole Authority, : Magistrate Judge Kemp

et al.,

 Defendants. :

 REPORT AND RECOMMENDATION

 Plaintiff William E. Cargile sent a complaint to this Court

without paying a filing fee or moving for leave to proceed in

forma pauperis. In response to this Court’s order that he do one

or the other, he has now submitted an account statement from his

institution and asked for leave to proceed without paying the

filing fee. His statement shows that he cannot afford either the

$5.00 fee required to file an action in habeas corpus or the

$350.00 filing fee required for a regular civil action, such as a

complaint seeking relief under 42 U.S.C. §1983. It makes a

difference which type of case this is, however, because if it is

a habeas corpus action, the filing fee can be waived; if it is a

regular civil case, the Court must assess the full filing fee and

require that it be paid in installments. See 28 U.S.C. §1915(b);

see also Jones v. Robinson, 2011 WL 6963097, *1 (S.D. Ohio Dec.

12, 2011), adopted and affirmed 2012 WL 37503 (S.D.Ohio Jan 09,

2012)(“In order to properly consider plaintiff's application to

proceed in forma pauperis, the Court must first determine the

nature of plaintiff's claim”). Also, although the Court must

screen either type of action, the screening provisions are

different; habeas corpus actions are reviewed initially under

Rule 4 of the Rules Governing Section 2254 Proceedings in the

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District Courts, whereas prisoner civil rights actions are

screened under 28 U.S.C. §§1915 and 1915A to determine if the

complaint is frivolous, malicious, fails to state a claim upon

which relief can be granted, or asserts a claim against a

government official who is immune from suit. Thus, before

proceeding further, the Court is required to decide what type of

action Mr. Cargile is attempting to bring.

In his complaint, Mr. Cargile alleges that he is being held

in state custody improperly because, although his parole

supervision expired, he has been treated as a parole violator. 

According to Mr. Cargile, he was arrested and charged with a

different crime after his supervision expired, but after he

served the sentence for that crime, the defendants, members of

the Ohio Adult Parole Authority, held a parole a revocation

hearing and ordered him to serve an additional 38 months in

prison. As relief, he has asked for both money damages for the

time he has spent in prison and for an order directing that he be

released immediately and without further parole supervision.

The complaint clearly requests two different kinds of relief

- both a money judgment and an order that, if issued, would cause

Mr. Cargile to be released from both prison and from any further

state supervision. If he were asking only for damages, this

would clearly be a civil action, and the full filing fee would

have to be assessed. See, e.g., Reed v. Mascio, 2009 WL 88614

(S.D. Ohio Jan. 12, 2009), adopted and affirmed 2009 WL 290409

(S.D. Ohio Feb. 5, 2009). On the other hand, his request to be

released from prison or parole cannot be heard in a civil action

filed under §1983, but only in an action brought seeking a writ

of habeas corpus under 28 U.S.C. §2254. Preiser v.

Rodriguez, 411 U.S. 475 (1973). Thus, this appears to be what

has been termed a “hybrid” action where both types of relief are

sought. 

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In Phillips v. Sundquist, 107 F.3d 12 (6th Cir. February 4,

1997)(unpublished), the Court of Appeals confronted a similar

situation where a “hybrid” complaint was filed, raising both an

issue about the legality of the prisoner’s imprisonment and a

claim for damages for wrongful imprisonment. The district court

had dismissed the former claim for failure to exhaust state

remedies, and the latter claim on the merits. The Court of

Appeals affirmed the dismissal of the case, but held that the

§1983 claim should have been dismissed on grounds that it had

been prematurely filed, and without prejudice to its renewal if

the prisoner were ever to obtain a court ruling that he was,

indeed, imprisoned unlawfully. That result is compelled by Heck

v. Humphrey, 512 U.S. 477 (1994), where the Supreme Court held

that any claim for damages for wrongful imprisonment cannot be

maintained unless and until either a state court, or a federal

court, by way of a writ of habeas corpus, has determined that the

imprisonment is, in fact, unlawful. See also Bohannon v. Martin,

2007 WL 2891426, *2 (S.D. Ohio Sept. 28, 2007)(“When a prisoner's

civil rights claim is barred by the Heck v. Humphrey doctrine,

the appropriate course for a federal district court is to dismiss

the claim for lack of subject matter jurisdiction pursuant to

Fed.R.Civ.P. 12(h)(3), rather than to dismiss the complaint with

prejudice as being frivolous, because the former course of action

is not an adjudication on the merits and would allow the prisoner

to reassert his claims if his conviction or sentence is latter

invalidated”). Here, to the extent that Mr. Cargile asserts a

claim for habeas corpus relief, it is clear that any such claim

cannot be resolved by the Court because Mr. Cargile has not yet

exhausted his state court remedies attacking his continued

confinement (or, at least, he has not pleaded that he has). Such

exhaustion is required by the federal habeas corpus statute, 28

U.S.C. 2254(b), (c). If the only question in this were the

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availability of habeas corpus relief, the Court would waive the

$5.00 filing fee and dismiss the case for lack of exhaustion. 

But that does not answer the question of whether the larger, nonwaivable filing fee must be assessed because the complaint also

seeks relief under §1983.

Other courts have assessed the full filing fee for a hybrid

action like this one. See, e.g.,Defoe v. Lindell, 2007 WL

1827237 (D. Minn. June 22, 2007). That does not appear to be the

uniform rule. Some courts allow the prisoner to specify, after

being alerted to the consequences both in terms of the filing fee

and the potential future effects of having the case dismissed,

which type of action was intended. See, e.g, Kane v. Winn, 319

F.Supp. 2d 162 (D. Mass. 2004). It is not clear that the

fairness concerns expressed in that case are really implicated

here, however, because the dismissal of the habeas portion of the

case for failure to exhaust, and dismissal of the civil rights

portion of the case under Heck, are both without prejudice, so

that a second habeas petition would not be deemed successive, and 

the dismissal of the civil rights action for lack of jurisdiction

might not be a “strike” under the Prison Litigation Reform Act. 

The most appropriate remedy, if the two cases really could

proceed separately, would seem to be to sever the claims from

each other and have the Clerk assign a new case number to one

portion of the case. Were the Court to do that, the full filing

fee would have to be assessed for the civil rights action, so

there is no prejudice to Mr. Cargile if the Court assesses the

same fee for the hybrid action. That is what is recommended.

It is therefore recommended that this case be deemed a

“hybrid action” where both habeas corpus relief and money damages

are sought; that the habeas portion of the case be dismissed for

failure to exhaust state court remedies; that the civil rights

portion be dismissed for lack of jurisdiction; and that the full

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filing fee be assessed in accordance with the PLRA.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 

 

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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