Hawes v. Brown et al

Filing 12

ORDER DISMISSING CASE. Signed by Judge William H. Orrick on 06/09/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 6/9/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 TERRY RAY HAWES, Plaintiff, 12 13 14 15 Case No. 17-cv-02400-WHO (PR) ORDER OF DISMISSAL v. JERRY BROWN, et al., Defendants. 16 17 INTRODUCTION 18 Plaintiff Terry R. Hawes alleges in this federal civil rights action that his state 19 conviction is invalid and that in consequence he is owed money damages by the Governor 20 of the State of California and the state superior court judge who presided over his criminal 21 trial. The United States Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-487 22 (1994) barred claims brought under 42 U.S.C. § 1983 that, if successful, would appear to 23 invalidate a conviction or sentence that has not already been reversed on direct appeal, 24 expunged by executive order, declared invalid by a state tribunal authorized to make such 25 determination, or called into question by a federal court’s issuance of a writ of habeas 26 corpus. As Hawes remains incarcerated and his complaint does not indicate that his 27 conviction or sentence has been invalidated or reversed, Heck appears to preclude his 28 claim. Accordingly, this suit is DISMISSED. 1 BACKGROUND In 2009, after two trials in the Marin County Superior Court, Hawes was found 2 3 guilty of rape by a foreign object, attempted forcible rape, making criminal threats, and 4 assault with the intent to commit rape. People v. Hawes, No. A127151, 2011 WL 4527800 5 at *1 (Cal. Ct. App. Sept. 29, 2011). He was sentenced to 33 years and eight months to life 6 in state prison. Id. Hawes appealed the judgment. Id. In 2011, the state appellate court affirmed the convictions, but remanded for 8 resentencing. Id. at *25. On remand, Hawes was sentenced to 27 years and eight months 9 to life in state prison. People v. Hawes, No. A134359, 2012 WL 4558924 (Cal. Ct. App. 10 Sept. 27, 2012). Hawes appealed again. Id. In 2013, the state appellate court remanded 11 United States District Court Northern District of California 7 the case so that the sentencing court could give Hawes credit for the time he had served 12 between his original sentencing date and his resentencing date. Id. It is these convictions and sentence that Hawes contends are invalid. 13 14 15 16 DISCUSSION A. Standard of Review In its initial review of this pro se complaint, the court must dismiss any claim that is 17 frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks 18 monetary relief against a defendant who is immune from such relief. See 28 U.S.C. 19 § 1915(e). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police 20 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 21 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 26 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal 27 conclusions cast in the form of factual allegations if those conclusions cannot reasonably 28 be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 2 1 (9th Cir. 1994). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 2 3 elements: (1) that a right secured by the Constitution or laws of the United States was 4 violated, and (2) that the alleged violation was committed by a person acting under the 5 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 6 B. 7 Legal Claims In order to recover damages for an allegedly unconstitutional conviction or 8 imprisonment, or for other harm caused by actions whose unlawfulness would render a 9 conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 11 United States District Court Northern District of California 10 invalid by a state tribunal authorized to make such determination, or called into question 12 by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-487. A 13 claim for damages based on a conviction or sentence that has not been so invalidated is not 14 cognizable under section 1983. Id. at 487. Where a state prisoner seeks damages in a 15 section 1983 suit, the district court must therefore consider whether a judgment in favor of 16 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it 17 would, the complaint must be dismissed unless the plaintiff demonstrates that the 18 conviction or sentence has been invalidated. Id. at 487. 19 Hawes’s convictions were affirmed on appeal. While there appear to have been 20 some appellate issues concerning his sentence, those issues concern the sentence’s length, 21 not its constitutional validity. A judgment in this case that defendants violated Hawes’s 22 constitutional rights in connection with his trial and sentence would therefore necessarily 23 imply the invalidity of his conviction or sentence. Accordingly, Hawes’s section 1983 suit 24 is barred by Heck and must be dismissed. 25 This dismissal is without prejudice. Hawes may refile his suit if he can show that 26 his conviction has been invalidated in one of the ways specified in Heck, which as I 27 indicated does not appear from the record to be the case. If Hawes refiles, he should be 28 aware that his claims for damages against the trial court judge will never be sustainable. A 3 1 state judge is absolutely immune from civil liability for damages for acts performed in his 2 judicial capacity. See Pierson v. Ray, 386 U.S. 547, 553-55 (1967); Duvall v. County of 3 Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Presiding over Hawes’s trial and imposing 4 sentence are without doubt acts performed in the judge’s judicial capacity. Further, if 5 Hawes can overcome the Heck bar, he must allege with specificity how the Governor of 6 California is liable for damages. Here, Hawes lists him as a defendant, but has not alleged 7 any facts showing legal liability. 8 9 CONCLUSION This federal civil rights action is DISMISSED. The Clerk shall enter judgment in favor of defendants, and close the file. 11 United States District Court Northern District of California 10 IT IS SO ORDERED. 12 Dated: June 9, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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