Shehee v. Ortega

Filing 9

ORDER Recommending Dismissal Without Prejudice (ECF No. 8 ), Plaintiff's Objections, If Any, Due Within Thirty (30) Days, signed by Magistrate Judge Michael J. Seng on 6/27/2014. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/4/2014.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,

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Plaintiff,

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CASE NO. 1:14-cv-00623-AWI-MJS
ORDER RECOMMENDING
WITHOUT PREJUDICE

DISMISSAL

v.
(ECF NO. 8)
ISABLE S. ORTEGA, et al.,

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PLAINITFF‟S OBJECTIONS, IF ANY, DUE
WITHIN THIRTY (30) DAYS

Defendants.

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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Plaintiff Gregory Ell Shehee, a civil detainee proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 28, 2014.

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(ECF No. 1.) On May 30, 2014, Plaintiff‟s Complaint was screened and dismissed, with

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leave to amend, for failure to state a cognizable claim. (ECF No. 7.) Plaintiff‟s First

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Amended Complaint (ECF No. 8) is now before the Court for screening.

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II.

SCREENING REQUIREMENT

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the

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Complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion

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thereof if it determines that the action has raised claims that are legally “frivolous or

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malicious,” “fails to state a claim upon which relief may be granted,” or that seek

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monetary relief from a defendant who is immune from such relief.

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1915(e)(2)(B). “Notwithstanding any filing fee, or any portion thereof, that may have
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28 U.S.C. §

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been paid, the court shall dismiss the case at any time if the court determines that . . .

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the action or appeal . . . fails to state a claim on which relief may be granted.” 28 U.S.C.

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§ 1915(e)(2)(B)(ii).

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III.

SUMMARY OF FIRST AMENDED COMPLAINT

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The First Amended Complaint identifies Isable S. Ortega, a Case Records Analyst

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at Coalinga State Hospital, and Barbara Morris, Health Care Information, as Defendants.

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Plaintiff‟s allegations are fragmented and difficult to understand. As far as the Court can

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decipher, Plaintiff claims that the Defendants failed to properly respond to discovery

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requests during his criminal trial and thereby denied him a fair trial in violation of his

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federal rights. (Compl. at 3.)

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IV.

ANALYSIS

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A.

Pleading Requirement

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Section 1983 “provides a cause of action for the „deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws‟ of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under Section 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is

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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

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B.

Heck Bar

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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

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remedy is a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); Preiser

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v. Rodriguez, 411 U.S. 475, 477 (1973); Young v. Kenny, 907 F.2d 874, 876 (9th Cir.

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1990).

Moreover, when seeking relief for an allegedly unconstitutional conviction or

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imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been

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reversed on direct appeal, expunged by executive order, declared invalid by a state

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tribunal authorized to make such determination, or called into question by a federal

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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, 486–87 (1994). “A claim . . . 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 487.

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Heck makes clear that a § 1983 cause of action “attributable to an

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unconstitutional conviction or sentence does not accrue until the conviction or sentence

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has been invalidated.” Id. at 489–90. “[A] state prisoner's § 1983 action is barred

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(absent prior invalidation) - no matter the relief sought (damages or equitable relief), no

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matter the target of the prisoner's suit (state conduct leading to conviction or internal

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prison proceedings) - if success in that action would necessarily demonstrate the

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invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82.

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In this case Plaintiff complains that the Defendants denied him a fair criminal trial

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by failing to respond to certain discovery requests. The amended complaint challenges

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the validity of Plaintiff‟s underlying conviction. Here, success on Plaintiff's claim would

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necessarily imply the invalidity of his conviction and continued incarceration.

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Plaintiff cannot attack his conviction in a civil rights action. The decision must
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have been successfully attacked before the civil rights action is filed. Heck, 512 U.S. at

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489-90. Plaintiff's claim is not cognizable until and unless Plaintiff can show that the

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criminal conviction has been set aside by the grant of writ of habeas corpus. Id. at 487.

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The deficiencies identified herein cannot be cured, and therefore further leave to amend

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this particular claim would be futile. See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir.

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2006) (Heck barred plaintiff's claims of wrongful arrest, malicious prosecution, and

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conspiracy among police officers to bring false charges against him); see also Valdez v.

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Rosenbaum, 302 F.3d 1039, 1049 (9th Cir. 2002) (prisoner's Sixth Amendment claim of

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denial of access to counsel while a pretrial detainee barred by Heck because claim

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would necessarily imply invalidity of subsequent conviction).

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V.

CONCLUSION AND RECOMMENDATION

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Plaintiff‟s First Amended Complaint does not state a cognizable claim against the

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named Defendants. Accordingly, it is HEREBY RECOMMENDED that this action be

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dismissed without1 prejudice for failure to state a claim.

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These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §

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636(b)(l).

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Recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge‟s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the

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right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Within thirty (30) days after being served with these Findings and

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IT IS SO ORDERED.

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Dated:

June 27, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Heck barred civil rights claim must be dismissed without prejudice so Plaintiff may reassert the claims if
the conviction or sentence is later invalidated. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.
1995).

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