Tinitali v. Flynn

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/14/2016 GRANTING plaintiff's 6 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of Sacramento County. The complaint is DISMISSED without prejudice to plaintiff's proper pursuit of habeas corpus relief in a new action. The Clerk shall close the case. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERNICE TINITALI,

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No. 2:15-cv-2197-EFB P

Plaintiff,

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v.

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KAREN FLYNN,

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ORDER

Defendant.

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Plaintiff is a county inmate proceeding without counsel in this civil action.1 She has filed

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an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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II.

Screening Order

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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Plaintiff alleges that Sacramento County’s Chief Assistant Public defender denied her
petition for resentencing under Proposition 47. In addition to seeking $2.5 million in damages,

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she requests “immediate release” from custody. ECF No. 1. As explained below, this action

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must be dismissed without prejudice to plaintiff’s pursuit of an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.

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As a general rule, a challenge in federal court to the fact of conviction or the length of

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confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 action would

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implicitly question the validity of confinement or its duration, the plaintiff must first show that

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the underlying conviction was reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v.

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Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004).

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Plaintiff’s success in this action would necessarily implicate the duration of her

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confinement because her only challenge is to the duration of her sentence and the very fact that

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she is confined. Accordingly, a writ of habeas corpus is plaintiff’s sole remedy in federal court,

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which she may pursue only after exhausting all of her constitutional claims in state court.

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Therefore, plaintiff’s complaint must be dismissed without leave to amend. See Gardner v.

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Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir.

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2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.” (internal quotation

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marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court
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should grant leave to amend even if no request to amend the pleading was made, unless it

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determines that the pleading could not be cured by the allegation of other facts.”).

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III.

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Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 6) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Sheriff of Sacramento County filed concurrently

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herewith.

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3. The complaint is dismissed without prejudice to plaintiff’s proper pursuit of habeas corpus
relief in a new action.
4. The Clerk of the Court shall close the case.
Dated: January 14, 2016.

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