UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

TIMOTHY N. HATTON, ) ) Plaintiff, ) ) v. ) No. 1:20-cv-02775-JPH-TAB ) TOM A. BLACK, ) MARSHALL COUNTY, ) ) Defendants. )

Order Denying Motion to Proceed in Forma Pauperis and Granting Motion to Withdraw Complaint

On October 26, 2020, plaintiff Timothy Hatton filed this action under

alleging constitutional violations stemming from his criminal conviction in state court. The Court ordered Mr. Hatton to pay the filing fee or seek leave to proceed in forma pauperis, and to show cause why this action should not be dismissed for failure to state a claim upon which relief may be granted. I. Motion to Proceed in Forma Pauperis Mr. Hatton's motion for leave to proceed in forma pauperis, dkt. [6], is denied because Mr. Hatton did not attach a copy of the transactions associated with his institution trust account for the 6-month period preceding the filing of this action. See

(a)(2). II. Motion to Withdraw Complaint Mr. Hatton alleged in his complaint that his attorney rendered ineffective assistance of counsel and he was wrongfully incarcerated as a result. As the Court explained in its screening order, Mr. Hatton failed to state a claim for relief because his public defender is not a state actor. Dkt. 4 at 3, citing Polk County v. Dodson,

(1981). The Court further noted Mr. Hatton could not seek damages for wrongful incarceration because his convictions had not been overturned.

citing Heck v. Humphrey,

(1994). In response to the Court's show cause order, Mr. Hatton has filed a "motion to withdraw complaint without prejudice or to amend complaint/brief." Dkt. 7. He states he has a post-

conviction relief action pending in the United States Supreme Court; "is now aware the only proper relief for [ineffective assistance of counsel] is a vacation of conviction and sentence and/or a new trial;" and therefore "the actions in this cause are premature, or needs to be amended." Id. at 1. Mr. Hatton asks for his complaint to be withdrawn without prejudice so he can amend it after exhausting his post-conviction remedies, or "if proper, to remove any financial compensation and consider vacating my conviction and sentence." Id. at 2. He concludes, "I have shown that Mr. Black was deficient and prejudice in representing me. In doing so, he has violated my rights and caused me to be wrongfully convicted." Id. Mr. Hatton's request for his complaint to be amended to exclude damages but vacate his conviction must be denied. A claim that challenges the fact or length of a person's confinement

must be brought in a habeas corpus petition, not in an action pursuant to

. See

(a); Preiser v. Rodriguez,

, 489−90, 494 (1973). Moreover, Mr. Hatton already challenged his conviction in a habeas action in this Court, and his petition was denied as time-barred. Hatton v. Warden, 1:19-cv-01737-SEB-TAB, dkts. 22, 23. A petitioner may not bring a second or successive § 2254 petition without first obtaining leave from the appropriate United States Court of Appeals.

(b)(3); see also Freeman v. Chandler,

(7th Cir. 2011). Accordingly, Mr. Hatton's motion to withdraw his complaint, dkt. [7], is granted to the extent that that it is effective as a notice of dismissal pursuant to Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure. No final judgment is required under these circumstances. The clerk is directed to close this action on the docket. SO ORDERED. Date: 11/24/2020 S|) ars Patrick hawlove James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution: TIMOTHY N. HATTON 231193 NEW CASTLE - CF NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels 1000 Van Nuys Road NEW CASTLE, IN 47362