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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TIMOTHY EARL HISSONG, SR., 10 11 12 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. 13 Defendants. ORDER DENYING PENDING MOTION AS MOOT (Doc. 2) 14 15 / 16 I. Procedural Background 17 Plaintiff Timothy Earl Hissong (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 20, 2011. (Doc. 1). 19 20 II. Screening Order Complaint filed May 20, 2011 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 26 When a prisoner challenges the legality or duration of his custody, or raises a constitutional 27 challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas 28 1 1 corpus. Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 1245-48 (2005); Preiser v. Rodriguez, 2 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990). Moreover, when seeking relief 3 for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 4 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 5 invalid by a state tribunal authorized to make such determination, or called into question by a federal 6 court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 7 487-88 (1994). “A claim . . . bearing that relationship to a conviction or sentence that has not been 8 so invalidated is not cognizable under § 1983.” Id. at 488. 9 Plaintiff’s claim is that Tulare County “brought an illegal case against [Plaintiff] for rape . 10 . .” and that Tulare County’s hospital breached its duty of confidentiality by calling the police after 11 Plaintiff checked into the hospital. (Doc. 1 at 3). As relief, Plaintiff seeks release from prison in 12 addition to monetary damages. (Doc. 1 at 3). Plaintiff may not at this time bring a civil rights action 13 arising from these events. Plaintiff’s remedy regarding his conviction and sentence is to file a 14 petition for writ of habeas corpus.1 15 Accordingly, after screening Plaintiff’s complaint filed on May, 20, 2011, the Court 16 HEREBY ORDERS that this action be DISMISSED, without prejudice, for failure to state a claim 17 upon which relief may be granted under section 1983. (Doc. 1). Since this action is dismissed, all 18 pending motions in this action are DENIED as moot. (Doc. 2). 19 20 21 IT IS SO ORDERED. 22 Dated: b9ed48 May 24, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 1 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. 2

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