Page v. County of Solano et al

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 04/18/13 ordering that plaintiff is granted 20 days from the date of this order in which to file a request for voluntary dismissal of this action. (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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ANDREW PAGE, JR.,

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Plaintiff,
vs.

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No. 2:13-cv-0394 DAD P

COUNTY OF SOLANO, et al.,
Defendants.

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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this action styled as a civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff has also filed a request to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has not included with his in forma pauperis

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application a certified copy of his inmate trust account statement for the six month period that

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preceded the filing of his complaint, as required by 28 U.S.C. § 1915(b). Good cause appearing,

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ruling on plaintiff’s application to proceed in forma pauperis will be deferred. See Footnote 1,

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infra.

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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).
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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In his complaint plaintiff contends that he has been sentenced under California’s

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Realignment Act, AP 109, but because of his prior convictions for serious or violent felonies he

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cannot serve his sentence in a county jail. He alleges that three attorneys “allowed” him to be

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sentenced unlawfully, claims incompetence of counsel, and seeks money damages. Plaintiff was

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in the Solano County Jail when this action was filed on February 27, 2013. (See Complaint filed

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Feb. 27, 2013 (ECF No. 1) at 1.) On March 28, 2013, plaintiff filed a notice of change of address

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indicating that he is now incarcerated at Deuel Vocational Institution in Tracy, California. (ECF

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No. 5.)
A prison inmate may not proceed with a § 1983 action that implicates the validity

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of ongoing confinement absent proof that the challenged conviction or sentence “has been

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reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

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

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writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 486 (1994). Heck

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applies to actions for injunctive relief as well as to actions for money damages. See Osborne v.

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District Attorney’s Office for Third Judicial Dist., 423 F.3d 1050, 1053 (9th Cir. 2005) (citing

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Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).

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Here, it is plain from the allegations of plaintiff’s complaint that the sentence

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imposed as a result of his conviction has not been set aside. This civil rights action is therefore

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barred by Heck and its progeny and must be dismissed for failure to state a claim upon which

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relief may be granted. See 28 U.S.C. § 1915A. Good cause appearing, plaintiff will be granted a

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period of twenty days in which to file a request for voluntary dismissal of this action. Failure to

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comply with this order will result in a recommendation that this action be dismissed.1
In accordance with the above, IT IS HEREBY ORDERED that plaintiff is granted

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twenty days from the date of this order in which to file a request for voluntary dismissal of this

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action. See Fed. R. Civ. P. 41(a).

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DATED: April 18, 2013.

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DAD:12
page13cv0394.41a

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Plaintiff is cautioned that if he proceeds further with this action he will be required to file
a complete signed in forma pauperis application and that he will incur a liability for the full amount
of the $350.00 filing fee for this action.
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