REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, Magistrate Judge.

The Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to Title 42, United States Code, Section 1983. This matter is before the Court upon a Motion to Dismiss filed by Defendant Lisa Boltin (Dkt. No. 17), Motion for Judgment on the Pleadings filed by Plaintiff (Dkt. No. 23), and Motion for Summary Judgment filed by Defendant Jody Taylor (Dkt. No. 34.) For the reasons set forth herein, the undersigned recommends the instant action be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915.

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate for consideration.

The Plaintiff brought the instant action against Defendants Lisa Boltin ("Boltin"), Donna Farris, and Capt. Jody Taylor on or about February 23, 2015, while he was incarcerated at the Colleton County Detention Center. (See generally Dkt. No. 1.) On May 4, 2015, Defendant Boltin filed an Answer and a Motion to Dismiss. (See Dkt. No. 16; Dkt. No. 17.) By order filed May 4, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 19.) On or about May 12, 2015, Plaintiff filed a Response in Opposition to Boltin's Motion to Dismiss as well as a Motion for Judgment on the Pleadings. (Dkt. No. 23.) On November 10, 2015, Defendant Taylor filed a Motion for Summary Judgment. (Dkt. No. 34.) By order filed November 10, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 35.) Plaintiff filed a Response in Opposition to Defendant Taylor's motion on or about December 2, 2015. (See Dkt. No. 37; see also Dkt. No. 38.)1

ALLEGED FACTS

The instant action appears based on Plaintiff's status in the community supervision program of the South Carolina Department of Probation, Parole and Pardon Services. (See Dkt. No. 1 at 3-4 of 5.) Plaintiff states that he seeks an injunction asking Defendants "to obey the revocation order signatured [sic] by the Honorable Perry M. Buckner on May 19th 2014." (Id. at 3 of 5.) According to Plaintiff, on May 19, 2014, Judge Buckner sentenced Plaintiff to one year in prison and "indicat[ed] by circling #4 th[at Plaintiff] should not be continued in the community supervision program under its current terms or under other terms and conditions." (Id.) Plaintiff questions why he is "being h[e]ld in . . . county jail when the Judge's order say[s] [he is] to be free." (Id.) Plaintiff further states (verbatim),

(Id.) Plaintiff contends that Defendants have violated his constitutional rights in "refusing to obey the revocation order." (Id. at 4 of 5.) In the "Relief" section of his Complaint, Plaintiff states that he seeks a "declaratory judgment" requiring all Defendants "to obey [Judge Buckner's] revocation order, releasing [Plaintiff] from everything so [he] can go to [his] family in . . . North Carolina." (Id. at 5 of 5.) He also seeks "some kind of decree or order that will ensure the rights and safety of others, so that this kind of situation will be prevented from happening any more." (Id.)

DISCUSSION

As noted above, Defendant Boltin filed a Motion to Dismiss, Plaintiff filed a Motion for Judgment on the Pleadings, and Defendant Taylor filed a Motion for Summary Judgment. (See Dkt. No. 17; Dkt. No. 23; Dkt. No. 34.) Although the Defendants argue several reasons why dismissal or summary judgment is appropriate, having carefully reviewed the record, the undersigned recommends the instant action be dismissed for failure to state a claim and the pending motions be dismissed as moot.2

As noted above, Plaintiff states that he seeks the following relief in the case sub judice: a "declaratory judgment" requiring all Defendants "to obey [Judge Buckner's] revocation order, releasing [Plaintiff] from everything so [he] can go to [his] family in . . . North Carolina." (Dkt. No. 1 at 5 of 5.) While Plaintiff states that he seeks declaratory relief, in actuality, he seeks release from the community supervision program. The United States Supreme Court held, in Preiser v. Rodriguez, 411 U.S. 475 (1973), that when "the relief [a prisoner] seeks is a determination that he is entitled to immediate release or a speedier release from [custody], his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court reiterated that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release." Heck, 512 U.S. at 481. Even though Plaintiff is no longer incarcerated in a detention center or other institution, given that Plaintiff is still in the community supervision program, it appears that he is still "in custody" sufficient to invoke the use of the writ of habeas corpus. See Jones v. Cunningham, 371 U.S. 236, 243 (1963). Simply put, "[i]nsofar as Plaintiff seeks his unconditional release from . . . [South Carolina Department of Probation, Parole and Pardon Services's] custody and/or supervision, such relief cannot be granted in this § 1983 action." Craig v. S.C. Dep't of Corrs., Civ. A. No. 2:12-cv-1164-CMC-BHH, 2012 WL 3134341, at *4 (D.S.C. July 10, 2012) adopted at 2012 WL 3136498 (D.S.C. Aug. 1, 2012); see also Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995) ("[D]eclaratory or injunctive relief claims which are in the nature of habeas corpus claims—i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release—are simply not cognizable under § 1983.").

In light of the foregoing, the undersigned recommends dismissing the instant action for failure to state a claim pursuant to 28 U.S.C. § 1915, and dismissing the pending motions (Dkt. No. 17; Dkt. No. 23; Dkt. No. 34) as moot. See 28 U.S.C. §1915(e)(2)(B); see also Neitzke v. Williams, 490 U.S. 319 (1989) (pursuant to § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte).

CONCLUSION

Wherefore, it is RECOMMENDED that the instant action be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B), and that the pending motions (Dkt. No. 17; Dkt. No. 23; Dkt. No. 34) be dismissed as moot.

IT IS SO RECOMMENDED.