Crump v. Plummer

Filing 19

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 12/12/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/12/2011)

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*E-Filed 12/12/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

Petitioner,

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No. C 11-4920 RS (PR)

STEVE CRUMP,

v.
CHARLES PLUMMER,
Respondent.
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INTRODUCTION

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This appears to be a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254

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by a pro se state prisoner. Petitioner filed a first, and now has filed a second petition. The

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second petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4

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of the Rules Governing Section 2254 Cases. The $5.00 filing fee for habeas corpus actions

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has been paid.

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BACKGROUND
It is unclear from the petition the current state of petitioner’s convictions. At different

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points, petitioner indicates that he has been convicted, that his trial ended in a mistrial, that

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he was retried, or is facing retrial. Petitioner must clear up these ambiguities in his amended

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No. C 11-4920 RS (PR)
ORDER DISMISSING PETITION

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petition.
DISCUSSION
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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United States District Court
For the Northern District of California

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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It is unclear whether petitioner wishes to challenge the constitutional validity of his

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conviction, or bring suit against the police for violating his rights, or both. Petitioner may

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not do both in the same action, and must make it clear which legal course he means to take

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by filing this action. Accordingly, the petition is DISMISSED WITH LEAVE TO AMEND.

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As to his civil rights allegations, petitioner is reminded that in order to recover damages for

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an allegedly unconstitutional conviction or imprisonment, or for other harm caused by

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actions whose unlawfulness would render a conviction or sentence invalid, a civil rights

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plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court’s issuance of a writ of habeas corpus.

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Heck v. Humphrey, 512 U.S. 477, 486–487 (1994). A claim for damages bearing on that

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relationship to a conviction or sentence that has not been so invalidated is not cognizable

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under 42 U.S.C. § 1983. Id. at 487. For petitioner, this means that if his convictions are

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currently valid, he is barred from pursuing a civil rights action against any state actor

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for actions whose unlawfulness would render his convictions or sentences invalid.

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Petitioner is also reminded that the filing fee for a civil rights action is $350.00, and that if he

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No. C 11-4920 RS (PR)
ORDER DISMISSING PETITION

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intends the instant action to be a civil rights suit, the Court likely will dismiss the instant

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action with leave to refile the action as a civil rights suit.

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Petitioner shall file an amended petition addressing the concerns detailed above within

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30 days from the date this order is filed. The amended petition must include the caption and

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civil case number used in this order (11-4920 RS (PR)) and the words AMENDED

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PETITION on the first page. Because an amended petition completely replaces the previous

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petitions, petitioner must include in his first amended petition all the claims he wishes to

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present. Petitioner may not incorporate material from the prior petition by reference. Failure

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to file an amended petition in accordance with this order will result in dismissal of this action

United States District Court
For the Northern District of California

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with prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.

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DATED: December 12, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-4920 RS (PR)
ORDER DISMISSING PETITION