(PC) Coleman v. Lopez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHN COLEMAN, 1:20-cv-00113-NONE-GSA (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 vs. MOTION FOR APPOINTMENT OF COUNSEL BE DENIIED, AND THIS CASE 14 T. LOPEZ, et al., BE DISMISSED AS BARRED BY HECK V. HUMPHREY, 512 U.S. 477 (1994) AND 15 Defendants. EDWARDS V. BALISOK, 520 U.S. 641 (1997). (ECF No. 22.) 16 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 18 19 20 21 I. PROCEDURAL HISTORY 22 Michael John Coleman (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 2, 2020, Plaintiff 24 filed the Complaint commencing this action in the Sacramento Division of the United States 25 District Court for the Eastern District of California. (ECF No. 1.) On January 22, 2020, the case 26 was transferred to this court. (ECF No. 7.) 27 On January 31, 2020, the court screened the Complaint and dismissed it for failure to 28 state a claim, with leave to amend. (ECF No. 10.). On August 24, 2020, Plaintiff filed the First 1 Amended Complaint, which is now before the court for screening. 28 U.S.C. § 1915. (ECF No. 2 22.) 3 II. BACKGROUND INFORMATION 4 On September 1, 2020, the court reviewed the First Amended Complaint and issued an 5 order requiring Plaintiff to respond and show cause why the First Amended Complaint should 6 not be dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 7 520 U.S. 641 (1997) and for Plaintiff’s failure to exhaust remedies before filing suit. (ECF No. 8 23.) Plaintiff was advised in the order that “when seeking damages for an allegedly 9 unconstitutional conviction or imprisonment, ‘a § 1983 plaintiff must prove that the conviction 10 or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by 11 a state tribunal authorized to make such determination, or called into question by a federal court’s 12 issuance of a writ of habeas corpus, 28 U.S.C. § 2254.’ Heck v. Humphrey, 512 U.S. 477, 487- 13 88 (1994),” and that “[t]his ‘favorable termination’ requirement has been extended to actions 14 under § 1983 that, if successful, would imply the invalidity of prison administrative decisions 15 which result in a forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 16 (1997).” (ECF No. 23 at 3:17-22.) (ECF No. 23 at 17-26.) 17 On September 30, 2020, Plaintiff filed a response to the court’s order. (ECF No. 24.) 18 Plaintiff alleged that his due process rights were violated when he was placed in administrative 19 segregation on a false presumption, and when he was found guilty at a disciplinary hearing of 20 possession of a weapon, suffered a credit loss of 365 days and lost contact visiting privileges. 21 However, Plaintiff’s response does not contain any allegations showing that the finding of guilt 22 which resulted in his forfeiture of credits has been reversed, expunged, declared invalid, or called 23 into question by a writ of habeas corpus. 24 III. SCREENING REQUIREMENT 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 27 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 28 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 2 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 3 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 4 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 A complaint is required to contain “a short and plain statement of the claim showing that 6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 10 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 11 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 12 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 13 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 14 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 15 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 16 plausibility standard. Id. 17 IV. SUMMARY OF ALLEGATIONS AND CLAIMS IN THE FIRST AMENDED 18 COMPLAINT 19 Plaintiff is presently incarcerated at Salinas Valley State Prison in Soledad, California. 20 The events at issue in the First Amended Complaint allegedly occurred at the California 21 Substance Abuse Treatment Facility in Corcoran, California, when Plaintiff was incarcerated 22 there. Plaintiff names as defendants T. Lopez, Sergeant K. Sudano, Lieutenant M. Jones, and 23 Correctional Officer Cavagnaro (collectively, “Defendants”). 24 Plaintiff alleges that he was issued a 115 Rules Violation Report on October 29, 2019, 25 for possession of a deadly weapon after two razor blades were found in his cell. Plaintiff claims 26 that he was falsely accused. Plaintiff was assigned to administrative segregation while awaiting 27 his hearing. He was found guilty of the offense at a hearing on January 21, 2020, and suffered a 28 credit loss of 365 days. He also had 24 points applied to his classification score. 1 Plaintiff alleges that the disciplinary proceeding against him violated his rights to due 2 process and he requests the restoration of lost credits and removal of the 24 points from his 3 classification score that were wrongly applied due to the disciplinary finding. Plaintiff also 4 requests court-appointed counsel. 5 V. MOTION FOR APPOINTMENT OF COUNSEL 6 Plaintiff has requested appointment of counsel. Plaintiff does not have a constitutional 7 right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 8 and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). 9 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 10 (1989). However, in certain exceptional circumstances the Court may request the voluntary 11 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 12 Without a reasonable method of securing and compensating counsel, the Court will seek 13 volunteer counsel only in the most serious and exceptional cases. In determining whether 14 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 15 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 17 In the present case, the court does not find the required exceptional circumstances. The 18 court has found that Plaintiff’s claims in this case are barred by Heck v. Humphrey and Edwards 19 v. Balisok, and therefore Plaintiff is unlikely to succeed on the merits. To date the Court has not 20 found any cognizable claims in Plaintiff’s complaints for which to initiate service of process, and 21 no other parties have yet appeared. Plaintiff’s due process claims are somewhat complex, but 22 based on a review of the record in this case Plaintiff appear that he can adequately articulate his 23 claims. Therefore, Plaintiff’s motion for appointment of counsel should be denied. 24 VI. HECK V. HUMPHREY AND EDWARDS v. BALISOK 25 When a prisoner challenges the legality or duration of his custody, or raises a 26 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is 27 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 28 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 1 allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 2 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 3 invalid by a state tribunal authorized to make such determination, or called into question by a 4 federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 487- 5 88. “A claim for damages bearing that relationship to a conviction or sentence that has not been 6 so invalidated is not cognizable under § 1983.” Id. at 488. This “favorable termination” 7 requirement has been extended to actions under § 1983 that, if successful, would imply the 8 invalidity of prison administrative decisions which result in a forfeiture of good-time credits. 9 Edwards, 520 U.S. at 643–647. 10 Plaintiff’s First Amended Complaint does not contain any allegations to show that 11 Plaintiff’s finding of guilt which resulted in his forfeiture of credits and the 24 points added to 12 his classification score has been reversed, expunged, declared invalid, or called into question by 13 a writ of habeas corpus. Therefore, Plaintiff is barred by Heck and Edwards from pursuing any 14 claims under § 1983 concerning the process he was provided which resulted in the forfeiture of 15 good time credits. 16 VII. RECOMMENDATIONS AND CONCLUSION 17 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 18 claims under § 1983, and this case is barred by Heck and Edwards. Therefore, this case should 19 be dismissed, without prejudice to filing a new petition for writ of habeas corpus. 20 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 21 1. This case be dismissed for failure to state a claim under § 1983, without prejudice 22 to filing a petition for writ of habeas corpus; and 23 2. The Clerk be directed to close this case. 24 These findings and recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 26 of the date of service of these findings and recommendations, Plaintiff may file written objections 27 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 1 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, 2 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 3 Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: October 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28