United States District Court, D. Maryland
MICHAEL MOMENT, #16-02335. Plaintiff.
ROBERT L. GREEN, Defendant.
W. Grimm United States District Judge
Moment filed this Complaint pursuant to 42 U.S.C. S 1983 with
a Motion for Leave to Proceed in Forma Pauperis, ECF No.2, on
December 12, 2016. For reasons to follow, I shall grant the
Motion for Leave to Proceed in Forma Pauperis for the purpose
of preliminary screening and dismiss the Complaint.
complains that he is illegally held at the Montgomery County
Jail. Defendant Robert L. Green is Director of
the Montgomery County Department of Correction and
Rehabilitaiion. Moment alleges that he informed Green that he
was being illegally detained because the judge who ordered
his detention lacked authority to do so. Moment faults Green
for continuing to detain him and seeks $5 million dollars in
filed the Complaint under 28 U.S.C. S1915, which permits an
indigent to commence an action in federal court without
prepaying the filing fee. To protect against abuse of this
privilege, the statute requires a court to dismiss any claim
that fails to state a claim on which relief may be
granted" or seeks monetary relief from a defendant who
is immune from such relief." 28 U.S.C.
§1915(e)(2)(B)(ii), (iii); 28 U.S.C. §1915A(b)(1),
(2). This Court is mindful of its obligation to liberally
construe the pleadings of pro se litigants such as Moments..
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complain,, a plaintiffs allegations are
assumed to be true. Id. at 93 (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Nonetheless, liberal construction does not mean that a court
can ignore a clear failure in the pleading to allege facts
which set forth a claim cognizable in a federal district
court. See Weller v. Dep't of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990) ("The 'special
judicial solicitude' with which a district court should
view such pro se complaints does not transform the court into
an advocate."); Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985) (stating a district court
may not "conjure up questions never squarely
November 7, 2011, Moment was sentenced to a term of
incarceration to be followed supervised probation. After a
hearing held on August 2, 2016, Moment was found guilty of
violating his probation. Docket No. 278, Maryland v.
Moment, No. 117643C (Cir. Ct. Montgomery Cty., Md. Aug.
2, 2016). His sentencing is scheduled for February 13, 2017.
Docket No. 303 Maryland v. Moment, No. 117643C (Cir.
Ct. Montgomery Cty., Md. Jan. 12, 2017).
extent that Moment seeks damages under a 42 U.S.C. S1983
related to his confinement arising from his violation of
probation charges and conviction, he is barred from so doing
so at this time. Assuming that a colorable constitutional
claim has been stated, where an inmate's success in a
§ 1983 damages action would implicitly call into
question the validity of the underlying conviction or
duration' of confinement, the inmate must first
"achieve favorable termination of his available state or
federal habeas opportunities to challenge the underlying
conviction or sentence." Muhammad v. Close, 540
U.S. 749, 751 (2004) (citing Heck v. Humphrey, 512
U.S. 477 (1994)). Moment does not allege, nor does the record
reflect, that he has done so in regard to his conviction.
Because a judgment in Moment's favor would necessarily
imply the invalidity of his conviction, the Complaint will be
dismissed without prejudice.
these reasons, this Court will deny and dismiss the Complaint
without prejudice in a separate order which follows.
 At the time he filed the Complain,,
Moment was housed at the Montgomery County Detention Center
at 1307 Seven Locks Road in Rockville, Maryland. ECF No. I.
Moment has since provided the Court with a different address
in Laurel, Maryland. ECF NO.4. It is unclear whether his new
address is for mailing purposes only or if he remains at the
Montgomery County Detention Center. When a defendant is
released on his own recognizance prior to sentencing, he
still is "in custody' because he [is] subject to
restraints not shared by the public generally."
Wilson v Flaherty, 689 F.3d 332, 336 (4th Cir. 2012)
(quoting Hensley v. Mun. Court, 411 U.S. 345, 351
(1973) (internal quotation marks and alterations
 Moment's claims are based on
allegations similar to those he presented in other recently
filed cases See Moment v Denai, Civil Action No.
PWG-16-3976 (D. Md.); Moment v. Martel, Civil Action
No PWG-16-3966 (D. Md); Moment v. Malagari, ...