Escalante v. Uhren, et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/14/11 recommending that this action be dismissed without leave to amend. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKE ANGEL ESCALANTE,

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Plaintiff,

No. CIV S-11-1508 JAM GGH P

vs.
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E. UHREN, et al.,

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Defendants.
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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983. Defendants removed this case from state court and previously filed a motion to

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dismiss. Plaintiff filed a non-opposition to the motion to dismiss but requested an opportunity to

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file an amended complaint, which the court granted. The amended complaint was dismissed with

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leave to amend and plaintiff has filed another amended complaint.

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff alleges that his due process protections were violated when he was found

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guilty of a serious rules violation report (RVR). Plaintiff states he was denied a postponement,

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paperwork and the ability to call certain witnesses. As a result, plaintiff forfeited 30 days of good
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time credits, ninety days loss of yard, phone privileges and confinement to quarters. Plaintiff

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seeks money damages and the removal of the RVR from his record.

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However, plaintiff has not demonstrated that the RVR has been invalidated,

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expunged or reversed. In the court’s prior screening order plaintiff was advised that pursuant to

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Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff could not proceed with this action, unless the

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RVR had been invalidated, expunged or reversed. Plaintiff was granted leave to amend to

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address this issue. Plaintiff’s latest complaint is nearly identical to the prior complaints and

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plaintiff has failed to address the Heck bar. As it appears that the RVR has not been invalidated,

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expunged or reversed, this action must be dismissed.

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In Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana state prisoner brought a

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civil rights action under § 1983 for damages. Claiming that state and county officials violated his

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constitutional rights, he sought damages for improprieties in the investigation leading to his

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arrest, for the destruction of evidence, and for conduct during his trial (“illegal and unlawful

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voice identification procedure”). Convicted on voluntary manslaughter charges, and serving a

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fifteen year term, plaintiff did not seek injunctive relief or release from custody. The United

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States Supreme Court affirmed the Court of Appeal’s dismissal of the complaint and held that:

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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under 1983.

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Heck, 512 U.S. at 486. The Court expressly held that a cause of action for damages under § 1983

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concerning a criminal conviction or sentence cannot exist unless the conviction or sentence has

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been invalidated, expunged or reversed. Id.

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The Supreme Court has extended the Heck bar to § 1983 suits that would negate
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prison disciplinary proceedings that affect good-time credits. Edwards v. Balisok, 520 U.S. 641,

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648 (1997). A prisoner’s challenge to a disciplinary hearing procedure is barred if judgment in

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his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Id. at

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646. So, a “prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief

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sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

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leading to conviction or internal prison proceedings ) – if success in that action would necessarily

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demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74,

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81-82 (2005).

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As it clear that further amendment will be useless, this action should be dismissed
without leave to amend.

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Accordingly, IT IS HEREBY RECOMMENDED that this action should be
dismissed without leave to amend.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

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shall be served and filed within seven days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 14, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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