Von Villas v. Pallares, et al.

Filing 7

ORDER to SHOW CAUSE Why this Action Should not be Dismissed as Barred by Heck v. Humphry, 512 U.S. 477(1994); 30-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 5/30/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT A. VON VILLAS,
Plaintiff,

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v.
PALLARES, et al.,
Defendants.

Case No. 1:13-cv-01869-LJO-JLT (PC)
ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE DISMISSED AS
BARRED BY HECK V. HUMPHRY, 512 U.S.
477 (1994)
(Doc. 1)
30-DAY DEADLINE

Plaintiff, Robert A. Von Villas, is a state prisoner who is proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 18, 2013.

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(Doc. 1.) In the Complaint, Plaintiff alleges that as a result of his filing various administrative

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grievances (602s) regarding the handling of his and his cellmate's mail, Plaintiff was charged with

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a false RVR; that his witnesses and evidence were not interviewed and/or considered; and that, as

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a result, he was placed in Administrative Segregation for 280 days, transferred to a higher level

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prison, and that he lost 360 days good time credits, Medium "A" custody, 1989 priority effective

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work date, his twenty year clean prion record, and developed an anxiety disorder. (Id. at pp. 3-

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17.) Plaintiff seeks declaratory judgment, monetary damages, cost of suit, and injunctive relief by

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way of expunging the disciplinary conviction from his prison record, restoration of his Medium

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"A" custody level, return of his ICC and UCC Placement Points to their proper level, restoration

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of 360 good time and work time credits, and restoration of his effective work date to May 18,

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1989. (Id. at p. 28.)

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It appears that, if successful in this action, the restoration of Plaintiff's good time and work

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time credits may lead to his earlier release. When a prisoner challenges the legality or duration of

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his custody, or raises a constitutional challenge which could entitle him to an earlier release, his

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sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young

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v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when

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seeking damages for an allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff

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must prove that the conviction or sentence has been reversed on direct appeal, expunged by

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executive order, declared invalid by a state tribunal authorized to make such determination, or

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called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254."

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Heck v. Humphrey, 512 U.S. 477, 487-88 (1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997).

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"A claim for damages bearing that relationship to a conviction or sentence that has not been so

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invalidated is not cognizable under § 1983." Heck, at 488.

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The Complaint does not contain any allegations to show that the RVR, which Plaintiff

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alleges is false and retaliatory, has been reversed, expunged, declared invalid, or called into

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question by a writ of habeas corpus.

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Accordingly, it is HEREBY ORDERED that within 30 days from the date of service of

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this order, Plaintiff shall show cause in writing why this action should not be dismissed as barred

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by Heck v. Humphrey, 512 U.S. 477 (1994).

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The failure to respond to this order will result in dismissal of this action, without
prejudice.

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IT IS SO ORDERED.
Dated:

May 30, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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