Hill v. Marmolejo 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) and Edwards v. Balisok, 520 U.S. 641 (1997) 1 , signed by Magistrate Judge Sheila K. Oberto on 1/27/17: 21-Day Deadline. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOHNATHAN HILL, 10 11 12 13 Plaintiff, v. MARMOLEJO, et al., Defendants. Case No. 1:16-cv-00218-SKO (PC) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS BARRED BY HECK V. HUMPHRY, 512 U.S. 477 (1994) and EDWARDS v. BALISOK, 520 U.S. 641 (1997). (Doc. 1) TWENTY-ONE (21) DAY DEADLINE 14 15 16 Plaintiff, Johnathan Hill, is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff complains of having been wrongly 18 charged and found guilty of a Serious Rules Violation Report (“SRVR”) for batter on a police 19 officer. (Doc. 1.) Plaintiff alleges that he is innocent of this charge and was not given a proper 20 hearing on the charge which amounted to a violation of his right to due process. (Id.) As a result 21 of being found guilty, Plaintiff lost 150 days of good time credit. (Id., at p. 10.) 22 When a prisoner challenges the legality or duration of his custody, or raises a 23 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a 24 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 25 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 26 allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the 27 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 28 invalid by a state tribunal authorized to make such determination, or called into question by a 1 1 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 2 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or 3 sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488. This 4 "favorable termination" requirement has been extended to actions under § 1983 that, if successful, 5 would imply the invalidity of prison administrative decisions which result in a forfeiture of good- 6 time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). The Complaint does not contain any allegations to show that Plaintiff's finding of guilt 7 8 under the SRVR has been reversed, expunged, declared invalid, or called into question by a writ 9 of habeas corpus. Accordingly, it is HEREBY ORDERED that within twenty-one (21) days from the date 10 11 of service of this order, Plaintiff shall show cause in writing why this action should not be 12 dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 13 U.S. 641, 643-647 (1997). Failure to respond to this order will result in dismissal of this 14 action, without prejudice. 15 16 17 18 IT IS SO ORDERED. Dated: January 27, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2 .

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