Hissong v. Tulare County Kaweah Delta District Hospital, et al.

Filing 6

ORDER DISMISSING Action Without Prejudice, for Failure to State a Claim Upon Which Relief May Be Granted Under Section 1983 1 ; ORDER DENYING Pending Motions as MOOT 2 , signed by District Judge Lawrence J. O'Neill on 5/24/11. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY EARL HISSONG, SR.,

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CASE NO. 1:11-cv-00826-LJO-GBC (PC)

Plaintiff,
ORDER DISMISSING ACTION WITHOUT
PREJUDICE, FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE
TULARE COUNTY KAWEAH DELTA GRANTED UNDER SECTION 1983
DISTRICT HOSPITAL, et al.,
(Doc. 1)
v.

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Defendants.

ORDER DENYING PENDING MOTION AS
MOOT
(Doc. 2)

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/

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I.

Procedural Background

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Plaintiff Timothy Earl Hissong (“Plaintiff”) is a state prisoner proceeding pro se in this civil
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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 20, 2011. (Doc. 1).
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II.

Screening Order Complaint filed May 20, 2011

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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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When a prisoner challenges the legality or duration of his custody, or raises a constitutional
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challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas
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corpus. Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1245-48 (2005); Preiser v. Rodriguez,

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411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990). Moreover, when seeking relief

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for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the

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conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a federal

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court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477,

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487-88 (1994). “A claim . . . bearing that relationship to a conviction or sentence that has not been

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so invalidated is not cognizable under § 1983.” Id. at 488.

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Plaintiff’s claim is that Tulare County “brought an illegal case against [Plaintiff] for rape .

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. .” and that Tulare County’s hospital breached its duty of confidentiality by calling the police after

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Plaintiff checked into the hospital. (Doc. 1 at 3). As relief, Plaintiff seeks release from prison in

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addition to monetary damages. (Doc. 1 at 3). Plaintiff may not at this time bring a civil rights action

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arising from these events. Plaintiff’s remedy regarding his conviction and sentence is to file a

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petition for writ of habeas corpus.1

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Accordingly, after screening Plaintiff’s complaint filed on May, 20, 2011, the Court

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HEREBY ORDERS that this action be DISMISSED, without prejudice, for failure to state a claim

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upon which relief may be granted under section 1983. (Doc. 1). Since this action is dismissed, all

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pending motions in this action are DENIED as moot. (Doc. 2).

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IT IS SO ORDERED.

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Dated:
b9ed48

May 24, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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Plaintiff has once before had a case dismissed for being improperly brought as a section 1983 claim in
Hissong v. State of California, et al.,1:11-cv-00345-LJO-MJS (dismissed March 7, 2011, for failure to state a claim).
As Plaintiff appears to be repeating the same error, the Court reiterates that Plaintiff needs to file this claim as a
habeas action.

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