1 28 U.S.C. § 1915(e)(2) provides, in pertinent part:

Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the

court determines that –

. . .

(B) the action or appeal –

. . .

(ii) fails to state a claim upon which relief may be granted . . . 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROY DEONDRE NICHOLS,

Plaintiff,

v.

MICHIGAN PAROLE BOARD, ET AL.,

Defendants.

/

Case Number: 5:09-CV-11811

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER OF SUMMARY DISMISSAL

The plaintiff Roy Deondre Nichols has filed a pro se civil rights complaint pursuant to

42 U.S.C. § 1983. Plaintiff is currently incarcerated at the Saginaw Correctional Facility in

Saginaw, Michigan. He is proceeding without prepayment of the filing fee in this action under

28 U.S.C. § 1915(a)(1). After careful consideration, the Court dismisses the complaint pursuant

to 28 U.S.C. § 1915(e)(2),1 because the plaintiff fails to state a claim upon which relief may be

granted. 

In his complaint, Plaintiff challenges the suspension of his parole. He argues that his

incarceration was improperly extended twelve months based upon a dismissed felony charge. 

A claim under 42 U.S.C. § 1983 is an appropriate remedy for a state prisoner challenging

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a condition of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). “[H]abeas

corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his

confinement and seeks immediate or speedier release, even though such a claim may come

within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481, (1994), citing Preiser,

411 U.S. at 488-90 (1973). Consequently, a § 1983 action is barred when a state prisoner

challenges the fact or duration of his confinement, and seeks either “immediate release from

prison,” or the “shortening” of his term of confinement. Wilkinson v. Dotson, 544 U.S. 74, 79

(2005); quoting Preiser, 411 U.S. at 482. Here, Plaintiff challenges the length of his

incarceration and, therefore, § 1983 is not the appropriate remedy. 

If Plaintiff wishes to assert the claims contained in the pending complaint, he must do so

by filing a habeas corpus petition under 28 U.S.C. § 2254. The Court declines to construe

Plaintiff’s complaint as a habeas corpus petition because he does not allege that his claims are

exhausted. See Parker v. Phillips, 27 F. App’x 491, 494 (6th Cir. 2001). Further, the Court

declines to construe the complaint as a habeas corpus petition because Plaintiff may want to

assert additional or different claims for relief in a habeas corpus petition than those contained in

the complaint. 

For the foregoing reasons, IT IS ORDERED that the complaint is DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2), for failure to state a claim upon which relief may be granted. 

s/John Corbett O’Meara

United States District Judge

Date: May 29, 2009

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I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, May 29, 2009, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager

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