Larry Bailey v. Riverside Sheriffs et al

Filing 12

MINUTE ORDER IN CHAMBERS TO SHOW CAUSE Why This Action Should Not Be Dismissed for Challenging the Validity of Plaintiffs Conviction by Magistrate Judge Kenly Kiya Kato. (mrgo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 14-2381-UA (KK)

Title

Larry Bailey v. Riverside Sheriffs et al.

Present: The Honorable

Date

November 24, 2014

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

None Present

None Present

Proceedings:

(In Chambers) Order To Show Cause Why This Action Should Not Be
Dismissed for Challenging the Validity of Plaintiff’s Conviction

On November 10, 2014, Plaintiff Larry Bailey, a California state prisoner
proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983
(“Complaint”).1 In the Complaint, Plaintiff asks to have his “name clear[ed] for what I
did not do.” ECF No. 5 at 2. Plaintiff states he is “innocent” of the charge for which he
was convicted,2 and that he is the victim of a white supremacist conspiracy. Id. at 3.
Under the section of the Complaint to explain whether he has exhausted administrative
remedies, Plaintiff states that his last “level of appeal” was California Supreme Court
case number S221150. Id. at 2. According to the California courts’ online database, that
case number refers to Plaintiff’s state habeas corpus petition, which the California
Supreme Court denied on November 19, 2014.3 Based on these facts, the Complaint
appears to challenge Plaintiff’s conviction.
1

The Complaint was initially filed in the Northern District of California. See ECF No. 5 at 1.
However, on November 17, 2014, the action was transferred to this Court. See ECF No. 8.
2

The Complaint does not explicitly state the crime for which Plaintiff was convicted. However,
Plaintiff states (1) he is serving a four-year sentence; (2) he was prosecuted in Riverside Superior Court;
and (3) his sentence is under California Penal Code section 667. ECF No. 5 at 5. Based on those
statements, Plaintiff appears to be the same Larry Bailey whose conviction for failing to register as a sex
offender was affirmed on February 5, 2014, by the California Court of Appeal, and whose habeas corpus
petition challenging that conviction is now pending before this Court. See People v. Bailey, 2014 WL
462253 (Cal. Ct. App. 2014); Case No. 2:13-cv-4135-JLS-KK.
3

See California Courts – Appellate Court Case Information,
http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2087209&doc_
no=S221150.
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-2381-UA (KK)

Date

Title

November 24, 2014

Larry Bailey v. Riverside Sheriffs et al.

A petition for a writ of habeas corpus “is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement.” Heck v. Humphrey, 512 U.S.
477, 481, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (citation omitted). “[A] state
prisoner’s § 1983 action is barred” if “success in that action would necessarily
demonstrate the invalidity of confinement or its duration,” except where the prisoner's
conviction has already been invalidated. Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125
S. Ct. 1242, 161 L. Ed. 2d 253 (2005). Because the Complaint challenges the validity of
Plaintiff’s conviction, and because the conviction has not already been invalidated, this
action is barred.
Plaintiff is therefore ORDERED TO SHOW CAUSE within fourteen (14) days of
the date of this Order why the Court should not dismiss his Complaint for challenging
the validity of his conviction.
As an alternative, Plaintiff may, within fourteen (14) days of the date of this
Order, request a voluntary dismissal of this action without prejudice, pursuant to Federal
Rule of Civil Procedure 41(a). A Notice of Dismissal Form is attached for Plaintiff’s
convenience.
The Court warns Plaintiff that failure to file a timely response to this Order will
result in a recommendation that this action be dismissed.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER

Plaintiff(s),

v.

Defendant(s).

NOTICE OF DISMISSAL PURSUANT
TO FEDERAL RULES OF CIVIL
PROCEDURE 41(a) or (c)

PLEASE TAKE NOTICE: (Check one)
G This action is dismissed by the Plaintiff(s) in its entirety.
G The Counterclaim brought by Claimant(s)
dismissed by Claimant(s) in its entirety.

is

G The Cross-Claim brought by Claimants(s)
dismissed by the Claimant(s) in its entirety.

is

G The Third-party Claim brought by Claimant(s)
dismissed by the Claimant(s) in its entirety.

is

G ONLY Defendant(s)
is/are dismissed from (check one) G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim
brought by

.

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date

Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive
pleading or prior to the beginning of trial.

CV-09 (03/10)

NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)