Simpson v. Ahlin

Filing 7

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 Sheila K. Oberto on 1/3/2017. Show Cause Response due within twenty-one (21) days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EARL SIMPSON, Case No. 1:16-cv-00373-SKO (PC) 10 Plaintiff, 11 v. ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS BARRED BY HECK V. HUMPHRY, 512 U.S. 477 (1994) 12 AHLIN, (Doc. 1) 13 Defendant. TWENTY-ONE (21) DAY DEADLINE 14 15 16 Plaintiff, Earl Simpson, is a civil detainee who is currently proceeding pro se and in forma 17 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff contends he has served 18 a twenty year sentence, but instead of being released on parole, he has been detained in a 19 California State Hospital. (Doc. 1.) Plaintiff requests a finding that his due process rights have 20 been violated and that he be released from state custody. (Id.) It appears that Plaintiff may have 21 intended to pursue habeas corpus relief, rather than an action under §1983. 22 When a person in custody 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, imprisonment, or confinement, “a § 1983 plaintiff must 27 prove that the conviction or sentence has been reversed on direct appeal, expunged by executive 28 order, declared invalid by a state tribunal authorized to make such determination, or called into 1 1 question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. 2 Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a 3 conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 4 488. The Complaint does not contain any allegations to show that Plaintiff's detention order has 5 6 been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. It 7 appears that Plaintiff's intent in filing this action is for habeas corpus relief rather than to pursue 8 claims under § 1983. Accordingly, it is HEREBY ORDERED that within twenty-one (21) days from the date 9 10 of service of this order, Plaintiff shall show cause in writing why this action should not be 11 dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994). The failure to respond to this 12 order will result in dismissal of this action, without prejudice. 13 14 IT IS SO ORDERED. 15 Dated: 16 January 3, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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