Lawrence Wayne Corum v. Thomas McGuire, Jr. ( 1996 )

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No. 95-4232
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Lawrence Wayne Corum, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Thomas K. McGuire, Jr., Greene * Western District of Missouri.
County Circuit Court Judge; *
Mel Carnahan, Governor of the * [UNPUBLISHED]
State of Missouri; Dr. White, *
*
Appellees. *
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Submitted: October 7, 1996
Filed: October 15, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Lawrence W. Corum, a Missouri inmate, appeals from the district
court's1 order granting the defendants' motion to dismiss his 42 U.S.C. §
1983 action. We affirm.
Corum filed this section 1983 action against then Greene County
Circuit Court Judge Thomas K. McGuire, Jr., Governor Mel Carnahan, and
former Missouri Department of Corrections employee Dr. White, seeking
declaratory relief and damages. Corum claimed that his equal protection
and due process rights were violated because he was charged by information,
rather than indictment; because he pleaded guilty and was sentenced by
Judge McGuire under
1
The Honorable Russell G. Clark, United States District Court
for the Western District of Missouri.
a repealed statute; because Judge McGuire was mentally incompetent at the
time he accepted Corum's plea; and because the disparity between his
sentence and those Judge McGuire gave to "other individuals sentenced by
the court" demonstrated judicial bias. Corum further alleged Governor
Carnahan's office deceptively led his wife to believe his petition for
clemency would be seriously considered. As to Dr. White, Corum contended
that he was first told he tested positive for tuberculosis and then told
he tested negative, and that, notwithstanding his negative results, he
submitted to unnecessary treatment after Dr. White told him refusal to
submit to the treatment would result in "serious consequences"; Corum
claimed the unwanted treatment constituted an assault and battery. Upon
the defendants' motions, the district court dismissed Corum's complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6).
We review de novo the grant of dismissal under Rule 12(b)(6), viewing
the complaint in the light most favorable to Corum, and affirming only if
it appears beyond doubt that he can prove no set of facts that would
entitle him to relief. See Weaver v. Clark, 45 F.3d 1253, 1255 (8th Cir.
1995) (standard of review).
Corum cannot challenge the validity of his conviction and sentence
in this section 1983 action, but must do so through a habeas corpus action
against the appropriate Missouri prison official, and then only after he
has exhausted all of his available adequate state remedies. See Preiser
v. Rodriguez, 411 U.S. 475, 489-90 (1973); Franklin v. Webb, 653 F.2d 362,
364 (8th Cir. 1981) (per curiam) (correct to focus on nature of complaint
rather than relief sought); Offet v. Solem, 823 F.2d 1256, 1258 (8th Cir.
1987) (applying Preiser to § 1983 action seeking declaratory relief).
Furthermore, to the extent Corum seeks damages for his allegedly
unconstitutional conviction and sentence, his section 1983 action is barred
until he can show his conviction or sentence has been invalidated. See
Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994);
-2-
see also Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (judicial
immunity).
Corum's claim Governor Carnahan deceived him concerning clemency
consideration does not implicate any constitutional right. See Cross v.
City of Des Moines, 965 F.2d 629, 631-32 (8th Cir. 1992); Otey v. Hopkins,
5 F.3d 1125, 1128-29 n.3 (8th Cir. 1993) ("standardless" clemency statute
creates no protectable interest, only right to ask for mercy), cert.
denied, 114 S. Ct. 2768 (1994); Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th
Cir. 1994) (clemency denial discretionary absent interest created in
statute).
Finally, even assuming Corum's claim against Dr. White may be
liberally construed as a claim that Dr. White was deliberately indifferent
to Corum's medical needs, it fails because Corum did not allege that Dr.
White knew that Corum's positive test results were not accurate. See Lee
v. Armontrout, 991 F.2d 487, 489 (8th Cir.) (per curiam) ("prison officials
must test prisoners for tuberculosis and treat them . . . if they test
positive in order to prevent widespread infection"), cert. denied, 510 U.S.
U.S. 875 (1993); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (citation
omitted) (prison officials are deliberately indifferent to prisoner's
serious medical needs when they actually "know[] of and disregard[]" those
needs).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.