Hawes v. Kernan et al

Filing 5

ORDER OF DISMISSAL. Signed by Judge William H. Orrick on 10/31/2017. (Attachments: # 1 Certificate/Proof of Service)(jmdS, COURT STAFF) (Filed on 10/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERRY RAY HAWES,

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Case No. 17-cv-05969-WHO (PR)

Plaintiff,

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ORDER OF DISMISSAL

v.

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SCOTT KERNAN, et al.,

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Defendants.

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For the sixth time this year, plaintiff Terry Hawes seeks relief for injuries allegedly

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United States District Court
Northern District of California

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caused by his 2009 state convictions for rape and other crimes. In two of the civil rights

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actions, he attempted to sue the governor (whose connection to Hawes’s convictions

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plaintiff never established) and the trial judge who presided over his criminal trial (who is

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absolutely immune from civil liability for damages for acts performed in a judicial

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capacity).1 The third was dismissed because Hawes failed to pay the filing fee or submit a

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complete application to proceed in forma pauperis.2 The fourth, which named the district

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attorney and an assistant district attorney as defendants, and the fifth, which named the

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governor and his legal affairs secretary, were dismissed because they, like the present

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action, were barred by Heck.3 In the sixth and present action, Hawes sues the state

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governor and the Secretary of the CDCR for failing to free him even after he gave them

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evidence that his trial was unfair.
As with the prior actions, the current 42 U.S.C. § 1983 suit is barred by Heck v.

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Humphrey, 512 U.S. 477 (1994). As was made clear in the prior dismissal orders, Heck

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Hawes v. Brown, 17-cv-02400-WHO; and Hawes v. Brown, 17-cv-05166-WHO.

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Hawes v. State of California, 17-cv-01168-WHO.

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Hawes v. Berberian, 17-cv-05566-WHO; and Hawes v. Krause, 17-cv-05968-WHO.
Berberian was dismissed with prejudice because state prosecutors are absolutely immune
from damages liability under section 1983 for acts taken within their role as advocates of
the state.

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bars section 1983 actions for damages for an allegedly unconstitutional conviction or

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

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conviction or sentence invalid. Id. at 486-487. When a state prisoner seeks damages in a

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section 1983 suit, the district court must therefore consider whether a judgment in favor of

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the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it

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would, the complaint must be dismissed unless the plaintiff can demonstrate that the

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conviction or sentence has already been invalidated. Id. at 487. The Heck bar applies here

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because a judgment that defendants failed to free him would necessarily imply the

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invalidity of his convictions and sentence.
The Heck bar can be avoided if a plaintiff can prove that the conviction or sentence

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United States District Court
Northern District of California

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

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

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court’s issuance of a writ of habeas corpus. Id.

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Hawes has made no showing that Heck does not bar his case.

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Accordingly, this action is DISMISSED without prejudice. Hawes may refile his

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suit if he can show that his conviction has been invalidated in one of the ways specified in

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Heck.

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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 31, 2017
_________________________
WILLIAM H. ORRICK
United States District Judge

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