Burnett v. McNulty et al

Filing 8

ORDER OF DISMISSAL - Signed by Judge William H. Orrick on 07/20/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 7/20/2017)

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

CARLOS ROMERO BURNETT,
Plaintiff,

12
13
14
15

Case No. 17-cv-02998-WHO (PR)
ORDER OF DISMISSAL

v.
ANGELA MCNULTY, et al.,
Defendants.

16
17
18

INTRODUCTION
Plaintiff Carlos Romero Burnett alleges in this federal civil rights action that his

19

state conviction is invalid and that in consequence he is owed money damages by the

20

prosecutors and his appellate attorney. The United States Supreme Court in Heck v.

21

Humphrey, 512 U.S. 477, 486-487 (1994) barred claims brought under 42 U.S.C. § 1983

22

that, if successful, would appear to invalidate a conviction or sentence that has not already

23

been reversed on direct appeal, expunged by executive order, declared invalid by a state

24

tribunal authorized to make such determination, or called into question by a federal court’s

25

issuance of a writ of habeas corpus. Burnett’s case appears to do what Heck precludes.

26

Accordingly, this suit is DISMISSED.

27
28

1

BACKGROUND
In 2015, a Monterey County Superior Court jury convicted Burnett of possessing a

2
3

weapon in a penal institution. People v. Burnett, No. H042861, 2017 WL 25499 at *1

4

(Cal. Ct. App. Jan. 3, 2017). He was sentenced to 25 years to life in state prison, a

5

sentence to be served consecutively to the sentences for first degree murder and attempted

6

murder he was already serving. Id. In 2017, the state appellate court affirmed the

7

conviction. Id.
It is his 2015 conviction and sentence that Burnett contends are invalid.

8
9
10

DISCUSSION
A.

Standard of Review

United States District Court
Northern District of California

11

In its initial review of this pro se complaint, this Court must dismiss any claim that

12

is frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks

13

monetary relief against a defendant who is immune from such relief. See 28 U.S.C.

14

§ 1915(e). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

15

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

16

A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

17

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

18

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

19

plausibility when the plaintiff pleads factual content that allows the court to draw the

20

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

21

Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal

22

conclusions cast in the form of factual allegations if those conclusions cannot reasonably

23

be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55

24

(9th Cir. 1994).

25

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

26

elements: (1) that a right secured by the Constitution or laws of the United States was

27

violated, and (2) that the alleged violation was committed by a person acting under the

28

color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
2

1
2

B.

Legal Claims
In order to recover damages for an allegedly unconstitutional conviction or

3

imprisonment, or for other harm caused by actions whose unlawfulness would render a

4

conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction

5

or sentence has been reversed on direct appeal, expunged by executive order, declared

6

invalid by a state tribunal authorized to make such determination, or called into question

7

by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-487. A

8

claim for damages bearing that relationship to a conviction or sentence that has not been so

9

invalidated is not cognizable under section 1983. Id. at 487.

10

Where, as in this case, a state prisoner seeks damages in a section 1983 suit, the

United States District Court
Northern District of California

11

district court must consider whether a judgment in favor of the plaintiff would necessarily

12

imply the invalidity of his conviction or sentence; if it would, the complaint must be

13

dismissed unless the plaintiff can demonstrate that the conviction or sentence has been

14

invalidated. Id. at 487.

15

A judgment that defendants violated Burnett’s constitutional rights in connection

16

with his trial and sentence would necessarily imply the invalidity of his conviction or

17

sentence. Because it is not clear from the complaint that his conviction has been

18

invalidated, this section 1983 suit is barred by Heck. Accordingly, the action will be

19

dismissed. Burnett may refile his suit if he can show that his conviction has been

20

invalidated in one of the ways specified in Heck.

21
22

CONCLUSION
This federal civil rights action is DISMISSED. The Clerk shall enter judgment in

23

favor of defendants, and close the file.

24

IT IS SO ORDERED.

25

Dated: July 20, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

26
27
28
3