Larry Bailey v. California State Prison Corcoran

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 2/27/2014 recommending Dismissal without prejudice re 10 Complaint. Referred to Judge Anthony W. Ishii; Objections to F&R due in 14-days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY BAILEY,
Plaintiff,

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v.

Case No. 1:13-cv-02047-JLT (PC)
FINDINGS AND RECOMMENDAITON
RECOMMENDING DISMISSAL WITHOUT
PREJUDICE AS BARRED BY HECK V.
HUMPHRY, 512 U.S. 477 (1994)

CSP-CORCORAN, et al.,
(Docs. 1, 10, 12, 18)

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Defendants.
14 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), subsequent to Plaintiff filing

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the 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,

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seeking 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.)

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On January 9, 2014, the Court issued an order for Plaintiff to show cause within thirty
days why this action should not be dismissed as barred by Heck v. Humphrey, 512 U.S. 477

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(1994). (Doc. 18.) Despite filing a number of other documents1, more than thirty days have

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passed and Plaintiff has failed to show cause why this action is not barred by Heck v. Humphrey.

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When a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a

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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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As stated in the order to show cause, the Complaint does not contain any allegations to

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show that Plaintiff's conviction has been reversed, expunged, declared invalid, or called into

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question by a writ of habeas corpus. It appears that Plaintiff's intent in filing this action is for

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habeas corpus relief rather than to pursue claims under § 1983.

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The Court has the inherent power to control its docket and may, in the exercise of that

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power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). Based on Plaintiff’s failure to respond to the

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order to show cause, dismissal of this action is appropriate. In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local Rule 110.

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ORDER

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Accordingly, the Court HEREBY RECOMMENDS the matter be DISMISSED without

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prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14

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Each of Plaintiff's filings subsequent to the order to show cause have been reviewed and none in any way address
whether this case is barred by Heck v. Humphrey. (See Docs. 9-26.)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

February 27, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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