ANN MONTGOMERY, District Judge
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Plaintiff Harry Maddox, III ("Plaintiff") [Docket Nos. 12, 13] to the December 1, 2004 Report and Recommendation ("RR") of Magistrate Judge Arthur J. Boylan [Docket No. 10]. Judge Boylan recommends this Court summarily dismiss Plaintiff's self-styled Complaint, entitled "Civil Rights Complaint With a Jury Demand" [Docket No. 1]. The Complaint alleges various violations by Laura Davis ("Davis"), Phillip D. Prokopowicz ("Prokopowicz") and Kasey Schrandt ("Schrandt") (collectively "Defendants") of Plaintiff's civil rights.
The RR dismisses Plaintiff's claims for failure to state a claim on which relief can be granted and denies his amended application to proceed in forma pauperis [Docket No. 7]. The factual and procedural background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
II. DISCUSSION
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
Plaintiff effectively objects to the entirety of the RR's findings. Specifically, Plaintiff objects to the RR's finding that he failed to state a claim under 28 U.S.C. § 1983 on which relief can be granted. Second, Plaintiff objects to the finding that he may not proceed in forma pauperis and have the Court appoint legal counsel to represent him.
A. Failure to State a Claim for Which Relief Can be Granted
Pursuant to 28 U.S.C. § 1915A of the Prison Litigation Reform Act (PLRA) of 1995, federal courts must review the pleadings in every prisoner civil action against governmental entities and employees to determine whether aspects of the pleading are actionable and should be allowed to proceed. If any portion of the pleading, on its face, fails to state a cognizable claim, it must be dismissed. 28 U.S.C. § 1915A(b)(1).
1. Claims Against Defendants Schrandt and Prokopowicz
Plaintiff objects to the RR's findings that his claims against Schrandt and Prokopowicz are barred under the principles of Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff claims Defendants Schrandt and Prokopowicz violated his civil rights by illegally recording a telephone conversation in which he made incriminating statements without being advised of his Miranda rights. He also claims Schrandt and Prokopowicz tampered with the tape by erasing portions that were favorable to Plaintiff. Plaintiff is currently awaiting trial on state criminal charges.
The RR correctly states that habeas corpus is the exclusive remedy by which an individual in state custody can challenge the propriety of his or her confinement. RR at 4; Heck, 512 U.S. at 481. Heck bars civil rights actions by a prisoner-plaintiff when a favorable judgment would cast doubt on the validity of his state criminal prosecution and confinement. Id. at 483; see also Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996).Heck's holding also applies to a prisoner-plaintiff who is being detained while awaiting the resolution of a criminal trial.See, e.g., Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999); Smith v. Holtz, 87 F.3d 108, 113 (3rd Cir. 1996).
This Court agrees with the RR's finding that a judgment for Plaintiff on his present due process claims against Defendants Schrandt and Prokopowicz would "seriously undermine the state criminal charges currently pending against Plaintiff" and "subvert the State's attempt to prosecute him." RR at 5. Thus, under Heck, Plaintiff is barred from bringing his present claims against Defendants Schrandt and Prokopowicz in federal court at this time.
2. Claims Against Defendant Davis
Plaintiff also objects to the RR's findings that he did not plead sufficient facts or allege an actual injury necessary to support a claim against Defendant Davis. Plaintiff contends Davis failed to provide him proper dental care for a tooth problem.
Although federal courts construe pro se pleadings liberally, a plaintiff's complaint may not be merely conclusory and must allege facts, which if true, state a claim as a matter of law. See Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). Plaintiff's pleadings merely allege that Davis refused his request for "emergency medical tooth extraction." Without additional facts, this conclusory allegation is not sufficient to state a claim.
Additionally, the RR correctly noted Plaintiff's Complaint explicitly sues Davis for "negligence" and "medical malpractice," which are state causes of action and may not be brought in a federal civil rights lawsuit. RR at 6. Construing Plaintiff's pleadings broadly, the RR posits Plaintiff may have intended to bring a due process claim based on the Eighth Amendment standard of "deliberate indifference to serious medical needs." Id.;see Boyd v. Know, 47 F.3d 966, 968 (8th Cir. 1995). Once again, however, Plaintiff's pleadings lack the factual allegations necessary to support a deliberate indifference claim against Davis.
At most, Plaintiff's Complaint evidences that Davis treated his tooth problem with aspirin and penicillin, rather than providing the specific treatment Plaintiff requested. As the RR correctly noted, "mere disagreements over proper medical care do not give rise to an actionable civil rights claim by an inmate against an institutional health care provider." RR at 7; see Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990). Furthermore, Plaintiff fails to assert an actual injury that resulted from Davis's alleged actions, as required in order to state an Eighth Amendment violation. See White v. Holmes, 21 F.3d 277, 281 (8th Cir. 1994).
Finally, the portion of the transcript Plaintiff submitted fromState of Minnesota v. Maddox, No. K2-04-1205 (Minn. D. Ct. July 14, 2004) [Docket No. 12, Ex. 1], suggests that Plaintiff litigated his claim against Davis in state court. If true, the RR correctly finds Plaintiff's claim against Davis is also barred by the Rooker-Feldman doctrine. See RR at 7-8; see also In re Goetzman, 91 F.3d 1173, 1177 (8th Cir. 1996).
Based on the Court's findings that Plaintiff's claims against the Defendants should be dismissed for failure to state a claim on which relief may be granted, the RR's recommendation that the dismissal of this action count as a strike against Plaintiff for purposes of 28 U.S.C. § 1915(g) is adopted.
B. Denial of In Forma Pauperis Petition
Plaintiff objects to the denial of his request to proceed in forma pauperis and the RR's finding that he is liable for the unpaid balance of the $150 filing fee. As support for his position, Plaintiff submitted an Order allowing him to proceedin forma pauperis in state court [Docket No. 12, Ex. 1]. As the RR correctly stated, Plaintiff's request to proceed in forma pauperis in federal court must be denied if the action is dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Consequently, Plaintiff is not entitled to a court appointed attorney. Furthermore, the PLRA only excuses prisoners from pre-paying the applicable filing fee. See 28 U.S.C. § 1915(b); Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998); In re Tyler, 100 F.3d 528, 529-30 (8th Cir. 1997). It does not obviate the responsibility to pay the filing fee but merely permits the prisoner to make payments over time. Ashley, 147 F.3d at 716;In re Tyler, 100 F.3d at 529-30.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Judge Boylan's RR [Docket No. 10] is ADOPTED in its entirety;
2. Plaintiff's Amended Application to Proceed In Forma Pauperis [Docket No. 7] is DENIED;
3. Plaintiff's Complaint, entitled "Civil Rights Complaint With a Jury Demand" [Docket No. 1] is SUMMARILY DISMISSED;
4. Plaintiff is required to pay the unpaid balance of the Court filing fee, namely the full $150, in accordance with 28 U.S.C. § 1915(b)(2); and
5. For purposes of 28 U.S.C. § 1915(g), this action be dismissed "on the grounds that it is frivolous, malicious, or fails to state a claim on which relief may be granted."
LET JUDGMENT BE ENTERED ACCORDINGLY.