Weaver v. Graves
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/24/16 recommending that this action be dismissed. 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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WILLIE WEAVER,
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No. 2:15-CV-1957-JAM-CMK-P
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
JESSICA GRAVES,
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon
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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must
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allege with at least some degree of particularity overt acts by specific defendants which support
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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
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impossible for the court to conduct the screening required by law when the allegations are vague
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and conclusory.
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In this case, plaintiff sues his former defense counsel for alleged deficiencies
regarding counsel’s handling of his underlying criminal case. When a state prisoner challenges
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the legality of his custody and the relief he seeks is a determination that he is entitled to an earlier
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or immediate release, such a challenge is not cognizable under 42 U.S.C. § 1983 and the
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prisoner’s sole federal remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez,
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411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble
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v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a § 1983
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action seeking monetary damages or declaratory relief alleges constitutional violations which
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would necessarily imply the invalidity of the prisoner’s underlying conviction or sentence, or the
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result of a prison disciplinary hearing resulting in imposition of a sanction affecting the overall
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length of confinement, such a claim is not cognizable under § 1983 unless the conviction or
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sentence has first been invalidated on appeal, by habeas petition, or through some similar
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proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim
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not cognizable because allegations were akin to malicious prosecution action which includes as
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an element a finding that the criminal proceeding was concluded in plaintiff’s favor); Butterfield
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v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable
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because allegations of procedural defects were an attempt to challenge substantive result in
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parole hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because
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challenge was to conditions for parole eligibility and not to any particular parole determination);
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cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action seeking changes in
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procedures for determining when an inmate is eligible for parole consideration not barred
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because changed procedures would hasten future parole consideration and not affect any earlier
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parole determination under the prior procedures).
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Plaintiff alleges that his criminal defense attorney failed to move for dismissal
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based on insufficient evidence. He also claims counsel failed to interview witnesses. These
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allegations of ineffective assistance of counsel, if true, necessarily imply the invalidity of the
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underling conviction and, as such, are not cognizable under § 1983.
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Because it does not appear possible that the deficiencies identified herein can be
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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of
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the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Based on the foregoing, the undersigned recommends that this action be
dismissed.
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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 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: February 24, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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