Larry Bailey v. California State Prison Corcoran

Filing 18

ORDER to SHOW CAUSE Why This Action Should Not Be Dismissed as Barred By Heck v. Humphrey, 512 U.S. 477 (1994) 1 , 10 , 12 , signed by Magistrate Judge Jennifer L. Thurston on 1/9/14: 30-Day Deadline for Response to OSC. (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY BAILEY,

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Plaintiff,
v.
CSP-CORCORAN, et al.,
Defendants.

Case No. 1:13-cv-02047-JLT (PC)
ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED AS BARRED BY
HECK V. HUMPHRY, 512 U.S. 477 (1994)
(Docs. 1, 10, 12)
30-DAY DEADLINE

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Plaintiff, Larry Bailey, is a state prisoner who is currently proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff initially opened this action on a letter ("the

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opening letter") which he filed in the Northern District of California on October 25, 2013. (Doc.

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1.) It was transferred to this Court on December 12, 2013 (Doc. 14) after Plaintiff filed a

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complaint (Doc. 10) and motion to proceed in forma pauperis (Doc. 11). In both the opening

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letter and the Complaint, Plaintiff alleges "fabrication of arrest" and improper investigation and

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seeks his release from state custody. Plaintiff also requested appointment of counsel on a form

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intended for use in a federal habeas corpus case. (Doc. 12.) It appears that Plaintiff may have

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intended to pursue habeas corpus relief, rather than an action under §1983.

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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. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874

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(9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an

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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

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federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512

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U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or

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sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488.

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The Complaint does not contain any allegations to show that Plaintiff's conviction has

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been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. It

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appears that Plaintiff's intent in filing this action is for habeas corpus relief rather than to pursue

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claims under § 1983.

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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:

January 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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