Stewart Manago v. Gonzalez et al

Filing 38

ORDER to SHOW CAUSE why this Action Should not be Dismissed as Barred by Heck v. Humphry, 512 U.S. 477 (1994), signed by Magistrate Judge Sandra M. Snyder on 02/27/2013. Show Cause Response due by 4/2/2013.(Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEWART MANAGO, 10 Plaintiff, 11 vs. 12 1:11-cv-01269-SMS (PC) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS BARRED BY HECK v. HUMPHRY, 512 U.S. 477 (1994). GONZALEZ, et al., (Doc. 34) 13 Defendant. 14 ________________________________/ THIRTY (30) DAY DEADLINE 15 Plaintiff, Stewart Mango, (“Plaintiff”) is a state prisoner who is currently proceeding pro 16 se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed 17 his Complaint on August 1, 2011. (Doc. 1.) The Complaint was screened and dismissed with 18 leave to amend since it failed to state any cognizable claims. (Doc. 29.) On January 7, 2013, 19 Plaintiff filed the First Amended Complaint. (Doc. 34.) In the First Amended Complaint, 20 Plaintiff alleges that the false gang validation (as a member of the Black Gorilla Family “BGF”) 21 which forms the basis of this entire action “changed Plaintiff’s release date from June 20, 2013 to 22 October 2016. “ (Doc. 34, p. 21.) Plaintiff seeks both damages and expungement of the false 23 gang validation from his C-File. (Id., at pg. 25.) 24 When a prisoner challenges the legality or duration of his custody, or raises a 25 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a 26 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 27 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 28 allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 1 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 2 invalid by a state tribunal authorized to make such determination, or called into question by a 3 federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 4 U.S. 477, 487-88 (1994). “A claim for damages bearing that relationship to a conviction or 5 sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 488. 6 The First Amended Complaint does not contain any allegations to show that the gang 7 validation, which he alleges is false and retaliatory, has been reversed, expunged, declared 8 invalid, or called into question by a writ of habeas corpus. 9 Accordingly, it is HEREBY ORDERED that within thirty (30) days from the date of 10 service of this order, Plaintiff shall show cause in writing why this action should not be 11 dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994). 12 The failure to respond to this order will result in dismissal of this action, without 13 prejudice. 14 IT IS SO ORDERED. 15 Dated: icido3 16 17 18 19 20 21 22 23 24 25 26 27 28 February 27, 2013 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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