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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WALLACE, 12 13 14 15 No. 2:17-cv-0620 KJN P Plaintiff, v. ORDER DONELL SLIVKA, Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 28, 2017, the undersigned filed findings and recommendations herein which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. On April 3, 2017, plaintiff 23 consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). In light of 24 plaintiff’s consent, the Clerk of the Court is directed to remove the reference of this case to the 25 district court judge. 26 On April 14, 2017, plaintiff filed objections to the findings and recommendations. Upon 27 review of the objections, the undersigned finds that this action is barred by Heck v. Humphrey, 28 512 U.S. 477, 487-88 (1994), because plaintiff seeks damages for an allegedly unconstitutional 1 1 conviction or imprisonment that has not been reversed or called into question. (ECF No. 4 at 3.) 2 In his objections, plaintiff asks the court to “combine” the instant case with his habeas petition 3 proceeding in Wallace v. Barnes, No. 2:14-cv-0157 MCE EFB (E.D. Cal.). However, such relief 4 is inappropriate. Plaintiff may not join civil rights claims in his habeas action. Rather, plaintiff 5 must first pursue habeas relief. Then, if his conviction or sentence is reversed, expunged, 6 declared invalid, or called into question (ECF No. 4 at 3), plaintiff may file a civil rights action 7 seeking damages at that time.1 In light of plaintiff’s objections, the undersigned conducted a de novo review of this case. 8 9 10 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. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The Clerk of the Court is directed to remove the district judge assignment; and 13 2. This action is dismissed without prejudice. 14 Dated: April 20, 2017 15 16 17 /wall0620.804 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff would then pursue his arguments that defendant is not entitled to immunity in the new civil rights action. 2

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