UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

RODNEY J. PERRY, )

)

Plaintiff, )

)

v. ) No. 1:13 CV 1 JM

)

INDIANA STATE PAROLE BOARD, et al., )

)

)

Defendants. )

OPINION and ORDER

Rodney J. Perry, a pro se plaintiff, filed a complaint under 42 U.S.C. § 1983 and a

motion for leave to proceed in forma pauperis. (DE # 1, 2.) The court has an obligation

under 28 U.S.C. § 1915(e)(2)(B) to screen the complaint before service on the defendant,

and must dismiss the complaint if it is frivolous or malicious, fails to state a claim for

relief, or seeks monetary relief against a defendant who is immune from such relief. In

determining whether the complaint states a claim, the court applies the same standard

as when addressing a motion to dismiss under FEDERAL RULE OF CIVIL PROCEDURE

12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).

Perry is suing the Indiana State Parole Board and other state defendants,

claiming that he is being improperly subjected to certain conditions while on parole.

According to the complaint, Perry was convicted of two sex offenses in June 2000 and

sentenced to concurrent 10-year sentences on each count. He was paroled in January

2005. In August 2009, he was convicted of two counts of forgery and one count of failing

to register as a sex offender, and sentenced to an aggregate six-year term. In January

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2010, his parole was revoked on the year-2000-sex-offense convictions (apparently due

to his new offenses), and he was ordered to serve additional time in prison. He was

released on parole in October 2012. In his view, he is on parole for the forgery offenses,

whereas the parole board apparently views him as on parole for the sex offenses. He

claims the board is requiring him to comply with certain parole conditions applicable to

sex offenses, including participation in a sex offender treatment program, which he

believes is a violation of his rights under the Fifth and Fourteenth Amendments. He

requests that this court order his release from parole on the sex-offense convictions and

that he be “restored to regular parole for his forgery case.” (DE # 1 at 5.)

This case cannot proceed under 42 U.S.C. § 1983. As the United States Court of

Appeals for the Seventh Circuit has explained:

For prisoners, the difference between a civil rights action and a collateral

attack is easy to describe. Challenges to conditions of confinement (such as

pollution in the prison or deliberate indifference to serious medical needs)

fall under § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 36 L.

Ed.2d 439 (1973). Attacks on the fact or duration of the confinement come

under § 2254. Id.; Moran v. Sondalle, 218 F.3d 647, 650–51 (7th Cir.2000) (per

curiam). For parolees, the question is more metaphysical, because the

“conditions” of parole are the confinement. Requirements that parolees stay

in touch with their parole officer, hold down a job, steer clear of criminals, or

. . . obtain permission for any proposed travel outside the jurisdiction, are

what distinguish parole from freedom. It is because of these restrictions that

parolees remain “in custody” on their unexpired sentences and thus may

initiate a collateral attack while on parole. See Jones v. Cunningham, 371 U.S.

236, 242–43, 83 S. Ct. 373, 9 L. Ed.2d 285 (1963); see also Maleng v. Cook, 490

U.S. 488, 491, 109 S. Ct. 1923, 104 L. Ed.2d 540 (1989) (per curiam).

2

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Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003). Thus, when a parolee seeks relief

from the conditions of his parole, the appropriate remedy is a habeas petition, not an

action under 42 U.S.C. § 1983. Id. at 579-80.

Here, Perry is challenging certain conditions of his parole and is seeking

“release” from parole on the sex offenses he committed. Such relief must be pursued in

a habeas petition under 28 U.S.C. § 2254. See Preiser, 411 U.S. at 500; Williams, 336 F.3d at

580-81. Accordingly, the complaint will be dismissed, but the dismissal will be without

prejudice to Perry’s right to pursue his claims in a habeas petition after he exhausts his

state court remedies. 28 U.S.C. § 2254(b)(1)(A); Williams, 336 F.3d at 580 (“Normally,

collateral attacks disguised as civil rights actions should be dismissed without—rather

than with—prejudice. That resolution allows the plaintiff to decide whether to refile the

action as a collateral attack after exhausting available state remedies.”).

For these reasons, the motion for leave to proceed in forma pauperis (DE # 2) is

DENIED and the complaint (DE # 1) is DISMISSED WITHOUT PREJUDICE as stated

herein.

SO ORDERED.

Date: January 16, 2013

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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