Hawes v. Brown et al

Filing 5

ORDER OF DISMISSAL. Signed by Judge William H. Orrick on 09/19/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 9/19/2017)

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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-05166-WHO (PR) ORDER OF DISMISSAL v. E. G. BROWN, et al., Defendants. 16 17 For the second time this year, plaintiff Terry Hawes has filed a federal civil rights 18 action under 42 U.S.C. § 1983 in which he alleges that his 2009 state convictions for rape 19 and other crimes are invalid and that in consequence he is owed money damages by the 20 Governor of the State of California and the state superior court judge who presided over 21 his criminal trial. 22 His prior action (Hawes v. Brown, No. 3:17-cv-02400-WHO) was dismissed 23 because his claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). As was made 24 clear in the prior dismissal order, Heck bars section 1983 actions for damages for an 25 allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 26 whose unlawfulness would render a conviction or sentence invalid. Id. at 486-487. The 27 Heck bar can be avoided if a plaintiff can prove that the conviction or sentence has been 28 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 1 authorized to make such determination, or called into question by a federal court’s 2 issuance of a writ of habeas corpus. Id. 3 4 In this instant action, Hawes has made no showing, nor even alleged, that Heck does not bar his case. Accordingly, this action is DISMISSED without prejudice. 5 As was stated in the prior dismissal order, Hawes may refile his suit if he can show 6 that his conviction has been invalidated in one of the ways specified in Heck. If he refiles, 7 he should be aware of the following. His claims for damages against the trial court judge 8 will never be sustainable. A state judge is absolutely immune from civil liability for 9 damages for acts performed in his judicial capacity. See Pierson v. Ray, 386 U.S. 547, 553-55 (1967); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Presiding 11 United States District Court Northern District of California 10 over Hawes’s trial and imposing sentence are without doubt acts performed in the judge’s 12 judicial capacity. CONCLUSION 13 14 This federal civil rights action is DISMISSED. The Clerk shall enter judgment in 15 favor of defendants, and close the file. 16 IT IS SO ORDERED. 17 Dated: September 19, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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