Greene v. Board of Prison Terms et al
Filing
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ORDER signed by Senior Judge Lawrence K. Karlton on 4/18/11 ORDERING that the court declines to adopt the findings and recommendations filed 9/21/10; Plaintiff shall be provided with leave to file an amended complaint. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CEDRIC GREENE,
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Plaintiff,
No. CIV S-09-0229 LKK DAD P
vs.
BOARD OF PRISON TERMS, et al.,
Defendants.
ORDER
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Plaintiff, a former state prisoner proceeding pro se, has filed this civil rights action
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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On September 21, 2010, the magistrate judge filed findings and recommendations
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herein which were served on plaintiff and which contained notice to plaintiff that any objections
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to the findings and recommendations were to be filed within twenty-one days. Plaintiff has filed
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objections to the findings and recommendations.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
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304, this court has conducted a de novo review of this case. Having carefully reviewed the entire
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file, the court declines to adopt the findings and recommendations.
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Plaintiff brings a § 1983 claim arising out of an August 5, 2008 decision of the
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defendant Board of Prison Terms to revoke his parole. He alleges that he was in custody for 167
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days as a result of this decision. He filed his original complaint on January 26, 2009 and his
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amended complaint on November 18, 2009. On September 21, 2010, the magistrate judge
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recommended that this court dismiss plaintiff’s § 1983 action as barred by Heck v. Humphrey,
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512 U.S. 477 (1994). On November 5, 2010, the court adopted the findings and
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recommendations given that no objections were filed. On January 25, 2011, however, plaintiff
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filed a motion to set aside judgment because he was unable to file objections while incarcerated
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for violating parole from October 5, 2010 through January 6, 2011. On February 17, 2011, this
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court granted plaintiff’s motion and provided him with thirty days to file objections. Plaintiff
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timely filed objections to the findings and recommendations.
Under Heck, a claim that “necessarily implie[s] the invalidity of [a] conviction or
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sentence [may] not be maintained under § 1983 unless the prisoner proved ‘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[s], or called into question by a federal
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court’s issuance of a writ of habeas corpus.’” Nonnette v. Small, 316 F.3d 872, 875 (9th Cir.
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2002) (quoting Heck, 512 U.S. at 486-87). In Spencer v. Kemna, five members of the Supreme
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Court reasoned that “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action
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establishing the unconstitutionality of a conviction or confinement without being bound to satisfy
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a favorable-termination requirement that it would be impossible as a matter of law for him to
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satisfy.” 523 U.S. 1, 21 (1998) (Souter, J., concurring); id. at 25 n.8 (Stevens, J., dissenting)
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(“Given the Court’s holding that petitioner does not have a remedy under the habeas statute, it is
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perfectly clear . . . that he may bring an action under 42 U.S.C. § 1983.”). While the courts of
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appeal are split as to the significance of this reasoning in Spencer, see Wilson v. Johnson, 535
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F.3d 262, 267 & nn.6, 7 (4th Cir. 2008), the rule in the Ninth Circuit is clear. See Nonnette, 316
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F.3d at 877. Specifically, a plaintiff challenging the validity of a conviction or sentence may
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bring a § 1983 claim despite the Heck bar so long as (1) habeas relief is unavailable and (2)
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plaintiff timely pursued appropriate relief from the prior conviction. Id. at 877 & n.6; see also
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Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006).
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Here, plaintiff alleges that he was wrongly found in violation of his parole on
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August 5, 2008, and sentenced to 167 days. According to his complaint, he is no longer in
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custody for this violation. Under Nonnette, he may, thus, bring a § 1983 claim challenging the
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parole revocation decision. His claim does not fall within the Heck bar.
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Nonetheless, plaintiff’s amended complaint does not appear to comply with the
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minimum pleading requirements set forth in the magistrate judge’s October 26, 2009 order. For
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example, the magistrate judge instructed plaintiff not to include the Board of Prison Terms as a
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defendant, but plaintiff continued to name the board as a defendant. For this reason, the court
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instructs the magistrate judge to provide plaintiff with leave to amend his complaint and to,
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again, inform him of the minimum pleading requirements to state a claim.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The court declines to adopt the findings and recommendations filed September
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21, 2010;
2. Plaintiff shall be provided with leave to file an amended complaint.
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DATED: April 18, 2011.
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