Wilson v. Pierce et al

Filing 17

ORDER Overruling Plaintiff's 16 Objections and Denying Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 9/24/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS WAYNE WILSON,

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Plaintiff,
v.
PIERCE, et al.,

Case No. 1:16-cv-00479-LJO-SKO-(PC)
ORDER OVERRULING PLAINTIFF’S
OBJECTIONS AND DENYING
RECONSIDERATION
(Doc. 16)

Defendants.

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Plaintiff, Dennis Wayne Wilson, is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. This

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action was closed on April 4, 2017, upon a finding that Plaintiff’s claims were barred by the

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statute of limitations as well as Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok,

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520 U.S. 520 U.S. 641 (1997). (Docs. 11, 12, 13.)

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Roughly three months after the case was closed, on July 5, 2017, Plaintiff filed a notice

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indicating that he did not receive the order to show cause (Doc. 10) and findings and

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recommendation (Doc. 11) until June 26, 2017, as they had apparently fallen behind the desk

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where letters are placed in the Los Angeles County Central Jail where he had been housed since

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August 22, 2016. (Doc. 14.) Plaintiff apologized for not responding to either of these orders and

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requested an opportunity to do so. (Id.) Since this action was dismissed based on statute of

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limitation grounds and asserted claims that appeared barred by Heck and Edwards, judgment was

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not set aside, but Plaintiff was granted leave to file a response addressing whether his claims in

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this action are barred by the statute of limitations and Heck and Edwards, which would be

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considered under the Court’s Local Rules as well as the Federal Rules of Civil Procedure. (Doc.
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15.) Plaintiff filed a document titled as objections to the Findings and Recommendation upon

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which his case was dismissed (Doc. 16) which is construed as a motion for reconsideration of the

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order that dismissed this action.

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Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n motion and upon

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such terms as are just, the court may relieve a party . . . from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or misconduct by

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an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.”

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Motions under Rule 60(b) “must be made within a reasonable time -- and for reasons (1), (2), and

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(3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

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Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted)

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(addressing reconsideration under Rules 60(b)(1)-(5)). “A motion for reconsideration should not

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be granted, absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the controlling

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law,” and it “may not be used to raise arguments or present evidence for the first time when they

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could reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos

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Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations

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omitted) (emphasis in original).

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This action is based on Plaintiff’s contention that, after serving his determinate sentence,

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rather than being fully released he was wrongly placed on parole. (Doc. 16, p. 1.) Plaintiff states

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that his commitment sentence did not include any parole, but that his sentence was illegally

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construed to include it and that he has been falsely maintained on parole as a result. (Id., pp. 1-2.)

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Plaintiff asserts three arguments hoping to set aside the judgment in this action. First,

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Plaintiff contends that he is not barred from pursuing his claims under the statute of limitations,

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since he was fraudulently induced to sign the form agreeing to parole conditions. (Doc. 16, pp. 22

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3.) Plaintiff states that he believed parole was an illegal addition to his determinate sentence, so

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he initially refused to sign a form agreeing to parole conditions for which he received and was

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found guilty of two RVRs. (Id.) Plaintiff contends that the Defendants subsequently fraudulently

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induced him to sign the form agreeing to parole conditions. (Id.) Second, Plaintiff contends that

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he has been serving parole since 2012 which constitutes an ongoing injury which he is not barred

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by the statute of limitations from pursuing. (Doc. 16, pp. 4-5.) Plaintiff argues that his injury

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started with being charged and found guilty of the two RVRs in 2011, for not signing a form

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agreeing to parole conditions and that subsequent to signing it, he was wrongly subjected to

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parole. (Id.) Finally, Plaintiff contends that his action is not barred by Heck and Edwards since

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he challenged the RVRs he received in 2011 by filing writs of habeas corpus in California State

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Courts. (Doc. 16, pp. 5-6.)

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Only the last of Plaintiff’s arguments need be addressed since dispositive. As stated in the

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Order to Show Cause (Doc. 10, “OSC”) and the Findings and Recommendation (Doc. 11,

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“F&R”), when one challenges the legality or duration of his custody, or raises a constitutional

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challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas

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

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1990), cert. denied 11 S.Ct. 1090 (1991). When seeking damages for an allegedly

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unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the conviction or

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sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a

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state tribunal authorized to make such determination, or called into question by a federal court’s

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issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88

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(1994). “A claim for damages bearing that relationship to a conviction or sentence that has not

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been so invalidated is not cognizable under § 1983.” Id. at 488. This “favorable termination”

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requirement has been extended to actions under § 1983 that, if successful, would imply the

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invalidity of prison administrative decisions which result in a forfeiture of good-time credits.

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Edwards v. Balisok, 520 U.S. 641, 643-47 (1997).

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Plaintiff contends that his filing of writs of habeas corpus on the RVRs he received in
2011 “challenged” them such that he is not barred from pursuing claims thereon under § 1983.
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(Doc. 16, pp. 5-6.) Though Plaintiff acknowledges that both of his writs were denied by the

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California court, he contends that his mere filing of writs on the RVRs suffices to challenge them,

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which allows him to proceed here under § 1983. (Id.) However, Heck and Edwards do not

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require mere assertions that the underlying charges were wrongful, but findings invalidating the

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underlying conviction or sentence before one may pursue damages under § 1983. Heck, at 487-

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88; Edwards, at 643-47. Mere filing of a writ of habeas corpus does not suffice.
Plaintiff’s contention that he has been subjected to an ongoing, cumulative injury such that

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his claims are not barred by the statute of limitations because he has been subjected to parole

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“since ‘2012’” likewise confirms that this action is barred by Heck. One on parole is “in custody”

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for purposes of the federal habeas statute. Jones v. Cunningham, 371 U.S. 236, 243 (1963).

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Challenges to parole, or conditions thereof, imposed by a state correctional department may be

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challenged through a habeas petition under 28 U.S.C. § 2241. Bagley v. Harvey, 718 F.2d 921,

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922–23 (9th Cir. 1983). This action challenges events which Plaintiff alleges led to him being

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placed on parole -- from which he seeks a full release. Plaintiff’s claims are not cognizable under

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§ 1983 until the decision to place him on parole has been invalidated. Heck, 512 U.S. at 487-88

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Finally, Plaintiff is no longer on parole as he has been confined at the Los Angeles County

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Central Jail since August of 2016. (See Doc. 14, p. 1.) There are exceptions to Heck’s bar for

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Plaintiffs who are no longer in custody. A § 1983 claim, which would otherwise be Heck barred,

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may be maintained where a remedy in habeas corpus is unavailable because of mootness. See

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Spencer v. Kemna, 523 U.S. 1, 19, 21 (1998) concurring opinion adopted in Nonnett v. Small, 316

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F.3d 872, 876 (9th Cir. 2002) cert. denied 540 U.S. 1218 (2004) (inmate who had served period

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of incarceration which was being attacked was allowed to proceed under § 1983). However, an

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inmate’s release from custody and concomitant inability to overturn the prior conviction does not

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lift Heck’s bar unless the inmate timely pursued habeas relief thereon. See Guerrero v. Gates,

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442 F.3d 697 (9th Cir. 2006). Plaintiff’s allegations and arguments make clear that he did not

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timely pursue habeas relief for his parole confinement. Thus, he is barred from bringing claims

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for damages under § 1983 thereon.

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In accordance with the provisions of 28 U.S.C. ' 636(b)(1)(C) and Local Rule 303, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the April 4, 2017 order which dismissed this action as well as the findings and

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recommendation that issued on February 27, 2017, which the April 4, 2017 order adopted, are

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supported by the record and proper analysis.

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Accordingly, Plaintiff’s objections to the findings and recommendations, filed on July 10,
2017 (Doc. 16), are OVERRULED and any motion for reconsideration based thereon is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

September 24, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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