fm

FILED

DE§} i ’{2012

Clerk, U.S. D\stnct & Bankruptcy
Courts for the District ot Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBlA

Matthew J ames Dury, )
Plaintiff, §
v. § Civil Action No.  
Eric Holder, §
Defendant. §
l\/IEl\/IORANDUM OPINION

This matter is before the Court on review of plaintiffs pro se complaint and application
to proceed in forma pauperis The application will be granted and the complaint will be
dismissed pursuant to 28 U.S.C. § l9l 5A (requiring dismissal of a prisoner’s complaint upon a
determination that the complaint fails to state a claim upon which relief may be granted).

Plaintiff is an inmate at the United States Penitentiary in Atwater, California, suing under
Bivens v. Six Unknown Named Agents of F ederal Bureau of Narcotics, 403 U.S. 388 (1971), to
challenge the constitutionality of the statutes under which he was convicted. The gravamen of
the complaint is that the sentencing court, the United States District Court for the Westem
District of North Carolina, lacked jurisdiction over plaintiff s criminal prosecution.

Because the success of plaintiffs claim would necessarily void his conviction, plaintiff
cannot recover monetary damages, which is the only available remedy under Bivens, without
first showing that he has invalidated the conviction by "revers[al] on direct appeal,
expunge[ment] by executive order, declar[ation of invalidity] by a state tribunal authorized to

make such determination, or . . . a federal court’s issuance of a writ of habeas corpus." Heck v.

1

Humphrey, 512 U.S. 477, 486-87 (1994); see, e.g., Taylor v. U.S. Ba’. ofParole, 194 F.2d 882,
883 (D.C. Cir. l952) (stating that a motion to vacate under 28 U.S.C. § 2255 is the proper
vehicle for challenging the constitutionality of a statute under which a defendant is convicted);
Ojo v. I.N.S., 106 F.3d 680, 683 (5"‘ Cir. 1997) (explaining that the sentencing court is the only
court with jurisdiction to hear a defendant’s complaint regarding errors that occurred before or
during sentencing).

Plaintiff has not shown the invalidation of his conviction and, thus, has failed to state a
claim upon which relief can be granted under Bz'vens. A separate Order of dismissal

accompanies this Memorandum Opinion.

j g United §tlates District Judge

Date: December , 2012

