Benjamin Lee v. Officer Pirko et al

Filing 72

ORDER TO SHOW CAUSE by Magistrate Judge Steve Kim. Plaintiff is ORDERED TO SHOW CAUSE by no later than April 28, 2017, why this action should not be dismissed since it is barred by Heck and not cognizable under 1983 until and unless habeas relief is first obtained. (Attachments: # 1 Voluntary Dismissal) (mkr)

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

ED CV 15-1051-VBF (SK)

Title

Benjamin Lee v. CHP Officer Pirko, et al.

Present: The Honorable

Date

April 12, 2017

Steve Kim, United States Magistrate Judge

Marc Krause

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

None present

None present

Proceedings:

(IN CHAMBERS) SECOND ORDER TO SHOW CAUSE

Plaintiff was previously ordered to explain and show cause why his First Amended
Complaint (FAC) in this 42 U.S.C. § 1983 action should not be dismissed because it alleges
claims barred by Heck v. Humphrey, 512 U.S. 477 (1994). (ECF Nos. 35, 64). He was also
given multiple opportunities to cure this fatal deficiency by filing a Second Amended
Complaint (SAC) alleging only claims not foreclosed by Heck. (ECF Nos. 64, 68). Instead of
amending his complaint to survive Heck, however, Plaintiff filed a parallel federal habeas
petition (5:17-cv-233-VBF-SK) challenging his underlying state conviction and now seeks,
essentially, to stay this § 1983 action pending the outcome of the parallel habeas proceeding.
(ECF Nos. 65, 67, 69). But “a § 1983 claim that implicates issues in habeas corpus does not
accrue until the prisoner obtains a writ of habeas corpus or similar relief.” Clayton-El v.
Fisher, 96 F.3d 236, 244 n.4 (7th Cir. 1996) (citing Heck, 512 U.S. at 486–87). “[D]ismissal
and not a stay would be the proper disposition for a § 1983 claim that was brought
prematurely.” Id. A “claim is either cognizable under § 1983 and should immediately go
forward, or is not cognizable and should be dismissed.” Edwards v. Balisok, 520 U.S. 641, 649
(1997).
THEREFORE, Plaintiff is ORDERED TO SHOW CAUSE by no later than
April 28, 2017, why this action should not be dismissed since it is barred by Heck and not
cognizable under § 1983 until and unless habeas relief is first obtained. Plaintiff may discharge
this Order to Show Cause in one of two ways: he may either (1) file a SAC that complies with
the Court’s prior orders and alleges only claims not barred by Heck; or (2) voluntarily dismiss
this action without prejudice to re-filing a new § 1983 complaint if and when he is successful in
overturning his underlying state conviction. The statute of limitations for a new § 1983 claim
would not begin to run until the underlying conviction is invalidated by habeas relief. See
Heck, 512 U.S. at 489–90. Any other response, or a failure to respond, to this Order
to Show Cause shall result in a recommendation that this action be dismissed for
failure to state a claim, disobeying court orders, and/or lack of prosecution. See
Fed. R. Civ. P. 12(b)(6), 41(b); Local Rule 41-1. The Clerk is directed to provide Plaintiff with
a Notice of Voluntary Dismissal form (CV-009).
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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