IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02513-BNB

LAWRENCE M. KUBACKI,

Plaintiff,

v.

BRUCE LEVIN, 

FRAN WASSERMAN, 

BILL FREEMAN, 

BYRON HAZE, 

DOUG HILDEBRANT, 

STEVEN ANTUNA, and 

VIRGINIA GRADY,

Defendants.

ORDER OF DISMISSAL

Plaintiff, Lawrence M. Kubacki, is a prisoner in the custody of the Colorado

Department of Corrections who currently is incarcerated at the correctional facility in

Limon, Colorado. Mr. Kubacki initiated this action by filing pro se a Prisoner Complaint

pursuant to 42 U.S.C. § 1983 challenging the validity of a state court criminal conviction. 

As relief Mr. Kubacki seeks damages and to be released from custody. 

The Court must construe Mr. Kubacki’s filings liberally because he is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be

read "to state a valid claim on which the plaintiff could prevail, [the Court] should do so

despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

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requirements." Hall, 935 F.2d at 1110. However, the Court should not be an advocate

for a pro se litigant. See id. For the reasons set forth below, the complaint and the

action will be dismissed. 

As noted above, Mr. Kubacki is challenging the validity of a state court criminal

conviction. He is suing the state court judges involved in his criminal proceedings, his

public defender, and the detectives who investigated criminal charges against him. He

contends he was convicted on charges of first-degree murder and aggravated robbery,

and received a life sentence after similar charges against him previously were

dismissed. He asserts one claim of double jeopardy. 

To the extent Mr. Kubacki seeks to be released from custody, his sole federal

remedy is a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 504

(1973). Therefore, the habeas corpus claims may not be raised in this § 1983 action. If

Mr. Kubacki wishes to pursue any habeas corpus claims, he must file a separate

habeas corpus action naming a proper Respondent and using the proper habeas

corpus form. Mr. Kubacki must exhaust state court remedies for the federal claims he

intends to raise before he may seek habeas corpus relief in federal court . See Montez

v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (noting that state court remedies must

be exhausted prior to seeking habeas corpus relief). In addition, any habeas corpus

action Mr. Kubacki may wish to pursue is subject to a one-year limitation period. See

28 U.S.C. § 2244(d).

Mr. Kubacki’s claims for damages, which may be asserted in a § 1983 action, will

be dismissed because those claims are barred by the rule in Heck v. Humphrey, 512

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U.S. 477 (1994). Pursuant to Heck, if a judgment for damages necessarily would imply

the invalidity of a criminal conviction or sentence, the action does not arise until the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by an authorized state tribunal, or called into question by the

issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.

Based on Mr. Kubacki’s description of the nature of this case, it is apparent to

that he is challenging the validity of his state court criminal conviction. It also is

apparent that Mr. Kubacki has not invalidated his conviction because part of the relief

he seeks is to be released from custody. Therefore, the Court finds that Mr. Kubacki’s

claims for damages challenging the validity of his state court criminal conviction are

barred by the rule in Heck and must be dismissed. The dismissal of these claims will

be without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.

1996). Accordingly, it is

ORDERED that the Prisoner Complaint and the action are dismissed without

prejudice because the habeas corpus claims may not be raised in this action pursuant

to 42 U.S.C. § 1983, and the claims for damages are barred by the rule in Heck v.

Humphrey, 512 U.S. 477 (1994). 

DATED at Denver, Colorado, this 15th day of November , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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