(PC) Sherrod v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT DENNIS SHERROD, 1:19-cv-00839-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 vs. DISMISSED AS BARRED BY HECK V. HUMPHREY, 512 U.S. 477 (1994) AND 14 UNKNOWN, EDWARDS v. BALISOK, 520 U.S. 641 (1997). 15 Defendant. (ECF No. 29.) 16 OBJECTIONS, IF ANY, DUE WITHIN 17 FOURTEEN (14) DAYS 18 19 20 21 22 I. BACKGROUND 23 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 24 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 25 June 10, 2019, in the Sacramento Division of the United States District Court for the Eastern 26 District of California. (ECF No. 1.) On June 14, 2019, the case was transferred to this court. 27 (ECF No. 4.) 28 1 On December 23, 2019, Plaintiff filed the First Amended Complaint as a matter of course. 2 (ECF No. 21.) On February 10, 2021, the court issued an order requiring Plaintiff to show cause 3 within thirty days why this case should not be dismissed as barred by Heck v. Humphrey, 512 4 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). The thirty-day time 5 period expired and Plaintiff and not file a response to the court’s order. On May 24, 2021, the 6 court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. 7 (ECF No. 28.) On June 28, 2021, Plaintiff filed the Second Amended Complaint which is now 8 before the court for screening. 28 U.S.C. § 1915. 9 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 10 In brief, Plaintiff alleges in the Second Amended Complaint that during the relevant time 11 period he was incarcerated at California Substance Abuse Treatment Facility and State Prison in 12 Corcoran, California. On July 11, 2018, Plaintiff was assaulted by another inmate and received 13 a disciplinary Rules Violations Report (RVR), was found guilty, and forfeited 365 days of 14 behavior credits. Plaintiff claims that defendant Officer E. Oregel should have intervened in the 15 assault. Plaintiff also alleges that defendant Oregel wrote a false RVR report. 16 As relief, Plaintiff requests that the guilty finding be reversed and the 365 days of lost 17 credits be restored. Plaintiff also requests monetary damages. 18 III. HECK V. HUMPHREY AND EDWARDS v. BALISOK 19 When a prisoner challenges the legality or duration of his custody, or raises a 20 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is 21 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 22 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 23 allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 24 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 25 invalid by a state tribunal authorized to make such determination, or called into question by a 26 federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 487- 27 88. “A claim for damages bearing that relationship to a conviction or sentence that has not been 28 so invalidated is not cognizable under § 1983.” Id. at 488. This “favorable termination” 1 requirement has been extended to actions under § 1983 that, if successful, would imply the 2 invalidity of prison administrative decisions which result in a forfeiture of good-time credits. 3 Balisok, 520 U.S. at 643–647. 4 B. Discussion 5 Plaintiff submitted no evidence that an appeal was granted, or that his conviction or 6 sentence was reversed, expunged, declared invalid, or called into question by a federal court’s 7 issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Therefore, this court finds that Plaintiff’s 8 § 1983 case is barred by the favorable termination rule of Heck and Balisok and should be 9 dismissed, without prejudice to filing a petition for writ of habeas corpus. 10 IV. CONCLUSION AND RECOMMENDATIONS 11 The court has found that Plaintiff’s Second Amended Complaint fails to state a § 1983 12 claim upon which relief can be granted, and that Plaintiff is barred by Heck and Balisok from 13 pursuing his claims in this case under § 1983. Therefore, Plaintiff’s § 1983 case should be 14 dismissed, without prejudice to filing a petition for writ of habeas corpus. 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. Plaintiff’s case be DISMISSED for failure to state a § 1983 claim, as barred by 17 the favorable termination rule of Heck and Balisok, without prejudice to filing a 18 petition for writ of habeas corpus; and 19 2. The Clerk be directed to close this case. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 22 (14) days after the date of service of these findings and recommendations, Plaintiff may file 23 written objections with the court. Such a document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 25 /// 26 /// 27 /// 28 /// 1 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: October 4, 2021 /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