United States District Court, Eastern District of Missouri, Northern Division
May 28, 2015
WILLIAM BILLY GENE CARTER, Plaintiff,
ADAIR COUNTY, MISSOURI, Defendant.
MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on plaintiff’s request for reconsideration of the dismissal of this matter. Plaintiff’s request for reconsideration of the dismissal, or to alter or amend judgment, will be denied. Also before the Court is plaintiff’s motion to proceed in forma pauperis on appeal. This request will be granted.
Plaintiff, Billy Gene Carter, filed the instant action on April 30, 2015, pursuant to 42 U.S.C. § 1983. In his complaint against Adair County, Missouri, plaintiff, who has been formally classified as a “sexually violent predator” (“SVP”) in the State of Missouri, seeks review of the state court denial of his request for a conditional discharge from the Missouri Sex Offender Rehabilitation and Treatment Services (“SORTS”) Program. See State v. Carter, Case No. 02P0202000084 (Adair County Circuit Court, 2014).
In its May 4, 2015 Memorandum and Order, the Court noted that plaintiff’s requested relief could not be had on § 1983 review, but was only available through the writ of habeas corpus. See 28 U.S.C. § 2254. Moreover, plaintiff is required to have exhausted his state administrative remedies prior to bringing his claims to this Court. See, e.g., Kolocotronis v. Holcomb, 925 F.2d 278, 279 (8th Cir.1991).
Petitioner asserts he has no remedy available to him because he believes he cannot appeal the denial of his application for conditional release to the Court of Appeals when he is not given a hearing before the state trial court on the matter. See Mo.Rev.Stat. § 632.504.. Of course, petitioner may appeal whether or not his petition was properly reviewed as “frivolous, ” by the state trial court, as a finding of frivolity is essentially a finding that the conditions of petitioner have “not so changed” enough to justify release. See, e.g., In re Care and Treatment of Coffman, 225 S.W.3d 439 (Mo. banc 2007); see also, Mo.Rev.Stat. § 632.504. Just as petitioner may seek review on a finding of a grant or denial of conditional release under the Sexually Violent Predator’s Act. See Mo.Rev.Stat. § 632.495.
As nothing in the documents submitted by plaintiff show that he has appealed the 2014 Adair County decision denying conditional release to the Missouri Court of Appeals, there is no indication plaintiff exhausted his state administrative remedies with respect to his request for release. As explained in the Court’s earlier decision, he must do so prior to bringing the matter in a habeas action in this Court. Thus, plaintiff’s request for reconsideration of the dismissal of this action, will be denied.
Accordingly, IT IS HEREBY ORDERED that plaintiffs request for reconsideration of the dismissal of his case or to alter/amend judgment [Doc. #11] is DENIED.
IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis on appeal [Doc. #13] is GRANTED.
IT IS FURTHER ORDERED that an appeal of the dismissal of this action would not be taken in good faith.