Wallace v. Slivka

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 4/20/2017 ORDERING the Clerk to remove the district judge assignment; and this action is DISMISSED without prejudice. 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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GEORGE WALLACE,

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No. 2:17-cv-0620 KJN P

Plaintiff,
v.

ORDER

DONELL SLIVKA,
Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 28, 2017, the undersigned filed findings and recommendations herein which

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were served on plaintiff and which contained notice to plaintiff that any objections to the findings

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and recommendations were to be filed within fourteen days. On April 3, 2017, plaintiff

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consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). In light of

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plaintiff’s consent, the Clerk of the Court is directed to remove the reference of this case to the

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district court judge.

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On April 14, 2017, plaintiff filed objections to the findings and recommendations. Upon

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review of the objections, the undersigned finds that this action is barred by Heck v. Humphrey,

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512 U.S. 477, 487-88 (1994), because plaintiff seeks damages for an allegedly unconstitutional
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conviction or imprisonment that has not been reversed or called into question. (ECF No. 4 at 3.)

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In his objections, plaintiff asks the court to “combine” the instant case with his habeas petition

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proceeding in Wallace v. Barnes, No. 2:14-cv-0157 MCE EFB (E.D. Cal.). However, such relief

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is inappropriate. Plaintiff may not join civil rights claims in his habeas action. Rather, plaintiff

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must first pursue habeas relief. Then, if his conviction or sentence is reversed, expunged,

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declared invalid, or called into question (ECF No. 4 at 3), plaintiff may file a civil rights action

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seeking damages at that time.1
In light of plaintiff’s objections, the undersigned conducted a de novo review of this case.

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Having carefully reviewed the entire file, the court finds the findings and recommendations are
supported by the record and by proper analysis, and therefore dismisses this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to remove the district judge assignment; and

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2. This action is dismissed without prejudice.

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Dated: April 20, 2017

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/wall0620.804

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Plaintiff would then pursue his arguments that defendant is not entitled to immunity in the new
civil rights action.
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