Cross v. Kings County Sheriff Department et al

Filing 6

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 Jennifer L. Thurston on 8/21/2014. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEROME LEE CROSS,

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Plaintiff,

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v.
KINGS COUNTY SHERIFF DEPT., et
al.,
Defendants.

Case No. 1:14-cv-01253-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)
30-DAY DEADLINE

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Plaintiff, Jerome Lee Cross, appears to be a county jail detainee1 who is currently

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proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff's Complaint alleges that he was arrested based on racial profiling, that he is being "held a

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captive," that he was "falsely arrested," and that he wants the District Attorney's Office to make

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full compensation for depriving him of his freedom. (Doc. 1, p. 3.) It appears that Plaintiff may

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have intended to pursue habeas corpus relief, rather than an action under §1983.
When a plaintiff 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
writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874
(9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an
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Plaintiff states that he has had two preliminary hearings and one trial that resulted in a hung jury, that charges were
dismissed in August of 2013, but were refiled in December of 2013, and that to date he remains in custody. (Doc. 1,
p. 3.)

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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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While Plaintiff alleges that he has not been convicted, the Complaint does not contain any

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allegations to show that the basis of Plaintiff's confinement has been reversed, expunged, declared

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invalid, or called into question by a writ of habeas corpus. It appears that Plaintiff's intent in

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filing this action is for habeas corpus relief rather than to pursue claims under § 1983.
Accordingly, it is HEREBY ORDERED that within thirty days from the date of service

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

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barred 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:

August 21, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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