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December 6, 1996

HENRY BENSON, Petitioner,
NEW JERSEY STATE PAROLE BOARD, et al., Respondents. HENRY BENSON, Plaintiff, vs. MARY KEATING DiSABATO, et al., Defendants.

The opinion of the court was delivered by: ORLOFSKY

ORLOFSKY, District Judge:

 Henry Benson ("Benson"), who is currently incarcerated at Southern State Correctional Facility in Delmont, New Jersey, filed a petition for a writ of mandamus in this court on July 25, 1996, which was docketed as Civil Action No. 96-3599. The court treated this pro se petition as one for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, because Benson sought relief in the form of immediate release from confinement. Subsequently, Benson filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Mary Keating DiSabato, the director of the New Jersey State Parole Board ("NJSPB" or the "Parole Board"), and others, seeking declaratory relief and punitive damages. This action was docketed as Civil Action No. 96-3944. Benson's habeas corpus action, which had been assigned to Judge Politan in the Newark vicinage, was transferred to this vicinage so that both actions could be considered together. *fn1"

 The respondents have filed a motion to dismiss Benson's habeas corpus petition on the ground that Benson has failed to exhaust available state remedies. Defendants in the civil rights suit have filed a motion for summary judgment on the grounds that the action is moot and barred by the Eleventh Amendment.

 These two actions require this court to determine whether a prisoner who claims that he has been denied a timely parole hearing, and who challenges an allegedly erroneous calculation of his parole eligibility date, may simultaneously seek habeas corpus relief pursuant to 28 U.S.C. § 2254, and a declaratory judgment and damages pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Because Benson's § 1983 complaint, is, in effect, a challenge to the outcome of a parole decision in his case, I conclude that this issue, which "lies at the intersection of the two most fertile sources of prisoner litigation," must be resolved in favor of an exclusive habeas corpus remedy. Heck v. Humphrey, 512 U.S. 477, , 114 S. Ct. 2364, 2369, 129 L. Ed. 2d 383 (1994). Accordingly, Benson's § 1983 complaint will be dismissed without prejudice for lack of subject matter jurisdiction in this court. Moreover, an analysis of Benson's habeas claims leads to the conclusion that his petition for a writ of habeas corpus must also be dismissed without prejudice.

 I. Procedural Background

 Henry Benson was convicted of one count of possession of a controlled dangerous substance with intent to distribute in violation of N.J. Stat. Ann. § 2C:35-5(b)(2), and one count of possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school in violation of N.J. Stat. Ann. § 2C:35-7. Benson was sentenced to a seven-year term of imprisonment with one year of parole disqualification.

 As a preliminary matter, this court must determine whether it has jurisdiction over the claims asserted by Benson in both his habeas corpus petition and in his § 1983 suit. Because I conclude that Benson's § 1983 complaint presents no legally cognizable claim, this court is without subject matter jurisdiction and is constrained to dismiss that complaint.

 II. Applicable Legal Standards

 A. The Intersection of § 1983 and Habeas Corpus

 The Supreme Court has carefully distinguished suits seeking release from confinement, which must be brought as petitions for a writ of habeas corpus, from suits challenging state administrative procedures or other conditions of confinement, which are properly brought under § 1983. In Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), the Court held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500. Subsequently, in Wolff v. McDonnell, 418 U.S. 539, 554-55, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Court, while recognizing that Preiser foreclosed a prisoner's claim for restoration of "good time" credits, nevertheless held that a prisoner could sue for damages and an injunction under § 1983 based upon his claim that the procedure for awarding "good time" lacked sufficient constitutional safeguards. See also Gerstein v. Pugh, 420 U.S. 103, 107 n.6, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) ("Because release was neither asked nor ordered, the lawsuit did not come within the class of cases for which habeas corpus is the exclusive remedy").

 In determining whether a prisoner's claim may properly be brought under § 1983, the Third Circuit has drawn a similar "distinction between process-based claims and those focusing on the outcome of a particular decision." Georgevich v. Strauss, 772 F.2d 1078, 1087 (3d Cir. 1985), cert. denied, 475 U.S. 1028, 89 L. Ed. 2d 339, 106 S. Ct. 1229 (1986). In Georgevich, a plaintiff class of state prisoners confined to state institutions contended that they had not been afforded the same parole procedures granted by state statute to similarly situated prisoners in county facilities. Although the court ultimately held that the district court must abstain pursuant to the doctrine announced in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the Third Circuit nevertheless made clear that the prisoners' class action was properly brought under § 1983, because it constituted a challenge to the conditions of confinement, insofar as it sought only the equal application of statutory procedures, and did not seek the prisoners' release. Georgevich, 772 F.2d at 1086. Cf. Wright v. Cuyler, 624 F.2d 455 (3d Cir. 1980) (suit challenging procedures for granting home furlough attacks condition of confinement and is properly brought under § 1983). This distinction between "process-based" claims and "outcome-based" claims may have focused too strongly on the type of relief sought. Distinguishing between suits seeking release and suits seeking damages was supported by Preiser's statement that:

If a state prisoner is seeking damages, he is attacking something other than the fact or length of confinement, and he is seeking something other than immediate or more speedy release . . . . Accordingly, . . . a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies.

 Preiser, 411 U.S. at 494. Inevitably, courts would need to decide what to do with a state prisoner who simultaneously sought release and damages.

 In Harper v. Jeffries, 808 F.2d 281 (3d Cir. 1986), the Third Circuit held that when a habeas corpus claim is combined with a § 1983 claim for damages, the district court should not dismiss the § 1983 claim, but should consider whether to stay the action pending a determination on the prisoner's habeas claim. In Harper, the plaintiff sued his parole officer and the parole board alleging that they denied him parole based upon a flawed arrest warrant. Harper sought his release, as well as damages and declaratory relief. The Third Circuit concluded that the district court should not have dismissed the § 1983 suit "simply because it was related to a petition for habeas corpus relief." Id. at 284.

 Similarly, in Melvin v. Nickolopolous, 864 F.2d 301 (3d Cir. 1988), the Third Circuit held that a district court, faced with a prisoner's action seeking both release from confinement and damages for that confinement should stay the damages action until the habeas claim had been exhausted.

 Such was the state of the law in this Circuit when the Supreme Court announced its decision in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). In Heck, the Court analogized a prisoner § 1983 suit to a common-law tort action for malicious prosecution, one element of which is a showing that the plaintiff prevailed in the original prosecution. The Court determined that if a judgment favorable to the prisoner in his § 1983 action would necessarily implicate the validity of the prisoner's conviction or the length of the prisoner's sentence, then a cause of action under § 1983 would not be cognizable unless and until the prisoner could prove that his underlying "conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by the issuance of a federal writ of habeas corpus." Id., 512 U.S. at , 114 S. Ct. at 2372. The Court concluded that, because Heck had not demonstrated that his conviction had been invalidated, his § 1983 suit was properly dismissed and his only federal remedy lay in the habeas statute. Id., 512 U.S. at , 114 S. Ct. at 2374.

 Heck can properly be viewed as an attempt by the Supreme Court "to avoid collisions at the intersection of habeas and § 1983." Id., 512 U.S. at , 114 S. Ct. at 2378 (Souter, J., concurring). In circumstances such as the Third Circuit faced in Harper, Heck now relieves the district court of the duty of issuing a stay, and retaining a prematurely filed § 1983 action on its docket. *fn3" Heck, 512 U.S. at , 114 S. Ct. at 2378-79 (Souter, J., concurring). Notably, the Court in Heck reaffirmed Wolff, stating that there would be no bar to a § 1983 action alleging that the ...

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