Hawes v. Berberian et al

Filing 4

ORDER OF DISMISSAL. Signed by Judge William H. Orrick on 10/26/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 10/26/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 TERRY RAY HAWES, 6 Case No. 17-cv-05566-WHO (PR) Plaintiff, 7 ORDER OF DISMISSAL v. 8 EDWARD S. BERBERIAN, et al., 9 Defendants. 10 United States District Court Northern District of California 11 For the fourth time this year, plaintiff Terry Hawes seeks relief for injuries allegedly 12 13 caused by his 2009 state convictions for rape and other crimes. In two of the civil rights 14 actions, he attempted to sue the governor (whose connection to Hawes’s convictions 15 plaintiff never established) and the trial judge who presided over his criminal trial (who is 16 absolutely immune from civil liability for damages for acts performed in a judicial 17 capacity).1 The third was dismissed because Hawes failed to pay the filing fee or submit a 18 complete application to proceed in forma pauperis.2 In the fourth and present action, he 19 sues the district attorney and an assistant district attorney for being part of a conspiracy to 20 deprive him of a constitutionally fair trial. As with the prior two actions, the current 42 U.S.C. § 1983 suit is barred by Heck v. 21 22 Humphrey, 512 U.S. 477 (1994). As was made clear in two prior dismissal orders, Heck 23 bars section 1983 actions for damages for an allegedly unconstitutional conviction or 24 imprisonment, or for other harm caused by actions whose unlawfulness would render a 25 conviction or sentence invalid. Id. at 486-487. When a state prisoner seeks damages in a 26 27 1 Hawes v. Brown, 17-cv-02400-WHO; and Hawes v. Brown, 17-cv-05166-WHO. 28 2 Hawes v. State of California, 17-cv-01168-WHO. 1 section 1983 suit, the district court must therefore consider whether a judgment in favor of 2 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it 3 would, the complaint must be dismissed unless the plaintiff can demonstrate that the 4 conviction or sentence has already been invalidated. Id. at 487. The Heck bar applies here 5 because a judgment that defendants were part of a conspiracy to violate his right to a fair 6 trial would necessarily imply the invalidity of his convictions and sentence. 7 The Heck bar can be avoided if a plaintiff can prove that the conviction or sentence 8 has been reversed on direct appeal, expunged by executive order, declared invalid by a 9 state tribunal authorized to make such determination, or called into question by a federal 10 court’s issuance of a writ of habeas corpus. Id. United States District Court Northern District of California 11 Hawes has made no showing that Heck does not bar his case. 12 The action is also barred because a state prosecuting attorney enjoys absolute 13 immunity from damages liability under 42 U.S.C. § 1983 for his conduct in “pursuing a 14 criminal prosecution” insofar as he acts within his role as an “advocate for the State” and 15 his actions are “intimately associated with the judicial phase of the criminal process.” 16 Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Pursuing criminal charges against 17 Hawes are without doubt acts performed in the district attorney’s and assistant district 18 attorney’s roles as advocates for the state. 19 Accordingly, this action is DISMISSED with prejudice. 20 21 22 23 24 CONCLUSION This federal civil rights action is DISMISSED with prejudice. The Clerk shall enter judgment in favor of defendants, and close the file. IT IS SO ORDERED. Dated: October 26, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 25 26 27 28 2

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