Wilson v. Pierce et al

Filing 10

ORDER for Plaintiff to SHOW CAUSE Why This Action Should Not Be Dismissed With Prejudice as Barred By The Statute of Limitations and By Heck v. Humphry, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) 1 , 7 , 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 DENNIS WAYNE WILSON, 10 11 12 Case No. 1:16-cv-00479-LJO-SKO-(PC) Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITH PREJUDICE AS BARRED BY THE STATUTE OF LIMITATIONS AND BY HECK V. HUMPHRY, 512 U.S. 477 (1994) and EDWARDS v. BALISOK, 520 U.S. 641 (1997). v. PIERCE, et al., 13 Defendants. 14 (Docs. 1, 7) 15 21-DAY DEADLINE 16 INTRODUCTION 17 18 Plaintiff, Dennis Wayne Wilson, is a former state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff complains of events 20 that occurred in 2011 when he allegedly was wrongly charged with and found guilty of a Rules 21 Violation Report (“RVR”) because he refused to sign a form agreeing to parole conditions. (Doc. 22 1.) Plaintiff alleges he was wrongly placed on parole rather than being fully released after serving 23 his sentence which did not include any parole. (Id.) As a result of being found guilty, Plaintiff 24 lost “time and credits.” (Id., p. 9) Plaintiff alleges that he has been “over detained due to illegal 25 construction of his sentence.” (Id., p. 9.) Plaintiff’s Claims Appear Barred by the Statute of Limitations 26 A. 27 Upon review of the Complaint, it is apparent that Plaintiff is barred by the statute of 28 limitations as all of his claims and allegations are based on incidents that occurred in 2011. 1 1 The applicable statute of limitations starts to run upon accrual of the plaintiff's claim, i.e. 2 when he knows or has reason to know of the injury that is the basis of his action, Douglas v. 3 Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009), which is normally on the date of injury, Ward v. 4 Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.1994). Actions under section 1983 fall 5 under the limitations period from the forum state’s statute of limitations for personal injury torts, 6 see Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091 (2007), which is two years in California, 7 see Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1. 8 The two-year statute of limitations period is tolled for two years if the plaintiff is a 9 prisoner serving a term of less than life which gives such prisoners effectively four years to file a 10 federal suit. See Cal. Civ. Proc. Code § 352.1(a); Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 11 2002) (federal courts borrow the state's California's equitable tolling rules if they are not 12 inconsistent with federal law). Thus, Plaintiff had four years from the date of the incidents at 13 issue to file suit. 14 The claims Plaintiff seeks to pursue in this action are barred by the statute of limitations. 15 His claims allegedly accrued, and the statute of limitations started running, in 2011. 16 4.) He was entitled to four years (the sum of the time allowed by the usual limitations period and 17 equitable tolling under section § 352.1) from that time to file suit. He, therefore, had until 2015, 18 at the latest, to file suit. He did not file this action until March 24, 2016 -- well after the 2015 19 deadline. 20 21 22 23 (Doc. 1, pg. Thus, Plaintiff’s claims from incidents that occurred in 2011 appear barred by the statute of limitations. B. Plaintiff’s Claims Appear Barred by Heck v. Humphry, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) When a prisoner challenges the legality or duration of his custody, or raises a 24 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a 25 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 26 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 27 allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the 28 2 1 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 2 invalid by a state tribunal authorized to make such determination, or called into question by a 3 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 4 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or 5 sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488. This 6 "favorable termination" requirement has been extended to actions under § 1983 that, if successful, 7 would imply the invalidity of prison administrative decisions which result in a forfeiture of good- 8 time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). 9 The Complaint does not contain any allegations to show that Plaintiff's finding of guilt 10 under the RVR has been reversed, expunged, declared invalid, or called into question by a writ of 11 habeas corpus. Thus, it appears he is barred by Heck and Edwards from pursuing his claims 12 under section 1983. 13 ORDER 14 Accordingly, it is HEREBY ORDERED that within twenty-one (21) days of the date of 15 service of this order, Plaintiff must show cause why this action should not be dismissed as barred 16 both by the statute of limitations and Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. 17 Balisok, 520 U.S. 641, 643-647 (1997). Failure to respond to this order will result in a 18 recommendation that this action be dismissed. 19 20 21 IT IS SO ORDERED. Dated: January 27, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3 .

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