Houze v. Sacramento Police Department et al

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/11/2013. Plaintiff's 5 Motion to Stay is DENIED. The Court is RECOMMENDING this action be dismissed without prejudice. These F/Rs are SUBMITTED to District Judge John A. Mendez. Within 14 days after being served with these Findings and Recommendations, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMOUNT HOUZE, III,

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No. 2:13-cv-1466 JAM CKD PS

Plaintiff,
v.

ORDER AND

SACRAMENTO POLICE
DEPARTMENT, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis. This proceeding was referred to this
court by Local Rule 302(c)(21).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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 (9th

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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.
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Plaintiff has filed an amended complaint and a request to stay this action pending

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completion of his habeas proceedings. The amended complaint alleges plaintiff was wrongfully

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convicted on stalking charges because of allegedly perjurious testimony by defendant McGovern.

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Plaintiff also acknowledges, however, that he currently has pending a habeas action challenging

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that conviction. As such, plaintiff’s instant civil rights action is barred. See Heck v. Humphrey,

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512 U.S. 477 (1994) (suit for damages on a civil rights claim concerning an allegedly

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unconstitutional conviction or imprisonment cannot be maintained absent proof that the

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conviction or sentence has been invalidated). Although plaintiff requests this court stay the

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pending action because of the statute of limitations, any claim under 42 U.S.C. § 1983 does not

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accrue until the conviction has been invalidated. Heck, 512 U.S. at 489. This action should

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therefore be dismissed.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to stay (ECF No. 5) is
denied; and

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 11, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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