Hardy v. Powell

Filing 4

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint, 1 , be dismissed without prejudice. Objections to F&R due within thirty (30) days after being served with these Findings and Recommendations. Matter referred to Judge O'Neill; signed by Magistrate Judge Sheila K. Oberto on 9/1/2010. (Timken, A)

Hardy v. Powell

Doc. 4

1 2 3 4 5 6 7 8 9 10 11 12 13 CURTIS C. HARDY, 14 Plaintiff, 15 v. 16 (Doc. 1) 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Curtis Hardy is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July 16, 2010. Plaintiff alleges that his attorney and the judge who presided over his criminal case forced him to accept a plea bargain for a crime he did not commit. Plaintiff also asserts that the defendant, Ronald Powell ("Defendant"), refused to prepare a legitimate defense in his criminal case. Plaintiff further contends that, although he was eventually coerced by Defendant into accepting a four-year plea bargain, the presiding judge ultimately sentenced him to sixteen years in state prison. Plaintiff avers that the conduct of his attorney and the judge in his criminal case violated his right to due process under the Fifth Amendment. Plaintiff is seeking an order requiring a federal criminal investigation of the RONALD POWELL, OBJECTIONS DUE: 30 DAYS Defendant. / FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT PREJUDICE CASE NO. 1:10-cv-01271-LJO-SKO

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ­ FRESNO DIVISION

Dockets.Justia.com

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Defendant's conduct and an award of monetary damages in the amount of ten million dollars. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78-82, 125 S.Ct. 1242, 1245-48 (2005); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841 (1973). Moreover, when seeking relief for an allegedly unconstitutional conviction or imprisonment, "a [Section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). "A claim . . . bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [Section] 1983." Id. at 487, 114 S.Ct. at 2372. At this time, Plaintiff may not bring a civil rights action related to the legality of his criminal conviction or the length of his sentence. Plaintiff's sole remedy is to file a petition for writ of habeas corpus. The Court notes that a petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 2

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under section 1983. Plaintiff cannot cure the above deficiencies, and leave to amend would be futile. These findings and recommendations will be submitted to the Honorable Lawrence J. O'Neill, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: ie14hj September 1, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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