Hawes v. Krause et al

Filing 5

ORDER OF DISMISSAL. Signed by Judge William H. Orrick on 10/30/2017. (Attachments: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF) (Filed on 10/30/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 TERRY RAY HAWES, 7 Plaintiff, 8 ORDER OF DISMISSAL v. 9 10 PETER KRAUSE, et al., 11 United States District Court Northern District of California Case No. 17-cv-05968-WHO (PR) Defendants. 12 For the fifth time this year, plaintiff Terry Hawes seeks relief for injuries allegedly 13 14 caused by his 2009 state convictions for rape and other crimes. In two of the civil rights 15 actions, he attempted to sue the governor (whose connection to Hawes’s convictions 16 plaintiff never established) and the trial judge who presided over his criminal trial (who is 17 absolutely immune from civil liability for damages for acts performed in a judicial 18 capacity).1 The third was dismissed because Hawes failed to pay the filing fee or submit a 19 complete application to proceed in forma pauperis.2 The fourth, which named the district 20 and assistant district attorneys, was dismissed because it, like the present action, was 21 barred by Heck.3 In the fifth and present action, Hawes sues the state governor and his 22 legal affairs secretary for failing to free him even after he gave them evidence that his trial 23 was unfair. 24 25 26 1 Hawes v. Brown, 17-cv-02400-WHO; and Hawes v. Brown, 17-cv-05166-WHO. 27 2 Hawes v. State of California, 17-cv-01168-WHO. 28 3 Hawes v. Berberian, 17-cv-05566-WHO. As with the prior actions, the current 42 U.S.C. § 1983 suit is barred by Heck v. 1 2 Humphrey, 512 U.S. 477 (1994). As was made clear in the prior dismissal orders, Heck 3 bars section 1983 actions for damages for an allegedly unconstitutional conviction or 4 imprisonment, or for other harm caused by actions whose unlawfulness would render a 5 conviction or sentence invalid. Id. at 486-487. When a state prisoner seeks damages in a 6 section 1983 suit, the district court must therefore consider whether a judgment in favor of 7 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it 8 would, the complaint must be dismissed unless the plaintiff can demonstrate that the 9 conviction or sentence has already been invalidated. Id. at 487. The Heck bar applies here because a judgment that defendants failed to free him would necessarily imply the 11 United States District Court Northern District of California 10 invalidity of his convictions and sentence. The Heck bar can be avoided if a plaintiff can prove that the conviction or sentence 12 13 has been reversed on direct appeal, expunged by executive order, declared invalid by a 14 state tribunal authorized to make such determination, or called into question by a federal 15 court’s issuance of a writ of habeas corpus. Id. 16 Hawes has made no showing that Heck does not bar his case. 17 Accordingly, this action is DISMISSED without prejudice. Hawes may refile his 18 suit if he can show that his conviction has been invalidated in one of the ways specified in 19 Heck. 20 21 22 23 24 CONCLUSION This federal civil rights action is DISMISSED without prejudice. The Clerk shall enter judgment in favor of defendants, and close the file. IT IS SO ORDERED. Dated: October 30, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 25 26 27 28 2

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