Schinkel v. Sullivan

Filing 8

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 Jennifer L. Thurston on 11/16/16: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY SCHINKEL,
Plaintiff,

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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).

Defendant.

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(Doc. 1)

v.
SULLIVAN,

30-DAY DEADLINE

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Case No. 1:16-cv-00818-DAD-JLT (PC)

Plaintiff alleges that Supervising Cook Sullivan refused to unlock the bathroom for him

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during his shift which forced him to defecate in a mop bucket. Plaintiff was found guilty on a

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resulting Rules Violation Report (“RVR”) which caused him to lose his prison job and 30 days of

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good time work credits. (Doc. 1.)

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When a prisoner 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

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writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874

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(9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an

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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. This

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"favorable termination" requirement has been extended to actions under § 1983 that, if successful,

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would imply the invalidity of prison administrative decisions which result in a forfeiture of good-

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time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997).

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The complaint does not contain any allegations to show that Plaintiff's finding of guilt

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under the RVR has been reversed, expunged, declared invalid, or called into question by a writ of

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habeas corpus nor does it demonstrate that the lost credit for custodial time has been restored.

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Accordingly, the Court ORDERS that within 30 days from the date of service of this

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

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Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 643–647 (1997).

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Failure to respond to this order will result in dismissal of this action, without prejudice.

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IT IS SO ORDERED.
Dated:

November 16, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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