Kinder v. Cortez et al
Filing
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ORDER DISMISSING ACTION With Prejudice Since Barred by Heck v. Humphrey, 512 U.S. 477 (1994) and ORDER Directing Clerk to Close Case signed by Magistrate Judge Jennifer L. Thurston on 8/4/2017. CASE CLOSED. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BOBBY LEE KINDER, Jr.,
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Plaintiff,
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v.
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CORTEZ, et al.,
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Case No. 1:16-cv-01764-JLT
ORDER DISMISSING ACTION WITH
PREJUDICE SINCE BARRED BY HECK v.
HUMPHREY, 512 U.S. 477 (1994)
(Docs. 1)
Defendants.
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ORDER DIRECTING CLERK TO CLOSE
CASE
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Plaintiff complains of having been wrongly celled with a with a Hispanic “Northanio”
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drop-out gang member, Ernie Cortez, at the Merced Sandymush County Jail. Plaintiff alleges that
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he was in protective housing because his jaw was healing after being wired shut from a prior
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altercation with another such inmate, who jumped Plaintiff and broke his jaw. When Cortez was
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placed in the cell with Plaintiff, they spoke and Cortez showed Plaintiff his paperwork which
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proved that Cortez was not a general population inmate like Plaintiff. “Due to politics and rules,”
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Plaintiff fought Cortez.
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Plaintiff alleges that, in retaliation, he was charged with sodomy. The sodomy charge
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caused Plaintiff not to be charged with petty theft for which he was arrested, but with “2nd-hand
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robbery instead” which gave him a strike and a “G.B.I.” enhancement on a four-year sentence and
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does not match the police report under which Plaintiff was charged and being held. Plaintiff also
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alleges that his public defender did not provide him copies of Plaintiff’s police report and sent
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Plaintiff to Napa State Hospital saying that Plaintiff was not competent for court. The sodomy
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charge pushed Plaintiff’s court date further off. Among other things, Plaintiff requests that the
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strike on his commitment charge be removed and that he be resentenced.
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Notably, Plaintiff was found to have committed the rules violation prohibiting sodomy.
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However, he has not demonstrated that his commitment charge or the enhancements have been
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reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. Thus the
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Court ordered Plaintiff to show cause why this action is not barred by Heck v. Humphrey, 512
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U.S. 477, 487-88 (1994). (Doc. 17.) Plaintiff filed a response in which he reiterates most of the
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allegations in his Complaint, but continues to fail to show that his increased commitment charge
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and enhancements have been reversed, expunged, invalidated, or questioned by a writ of habeas
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corpus.
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As stated in the OSC, when a prisoner challenges the legality or duration of his custody,
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or raises a constitutional challenge which could entitle him to an earlier release, his sole federal
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remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny,
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907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking
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damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must
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prove that the conviction or sentence has been reversed on direct appeal, expunged by executive
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order, declared invalid by a state tribunal authorized to make such determination, or called into
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question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v.
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Humphrey, 512 U.S. 477, 487-88 (1994). Since Plaintiff fails to provide any basis to find that his
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increased commitment charge and enhancements have been reversed, expunged, invalidated, or
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questioned by a writ of habeas corpus, he is barred from pursuing his claims under § 1983 at this
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time.
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Accordingly, this action is DISMISSED without prejudice. The Clerk of the Court is
directed to close the case.
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IT IS SO ORDERED.
Dated:
August 4, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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