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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 TERRY RAY HAWES, 4 Case No. 17-cv-05969-WHO (PR) Plaintiff, 5 ORDER OF DISMISSAL v. 6 7 SCOTT KERNAN, et al., 8 Defendants. 9 For the sixth time this year, plaintiff Terry Hawes seeks relief for injuries allegedly 10 United States District Court Northern District of California 11 caused by his 2009 state convictions for rape and other crimes. In two of the civil rights 12 actions, he attempted to sue the governor (whose connection to Hawes’s convictions 13 plaintiff never established) and the trial judge who presided over his criminal trial (who is 14 absolutely immune from civil liability for damages for acts performed in a judicial 15 capacity).1 The third was dismissed because Hawes failed to pay the filing fee or submit a 16 complete application to proceed in forma pauperis.2 The fourth, which named the district 17 attorney and an assistant district attorney as defendants, and the fifth, which named the 18 governor and his legal affairs secretary, were dismissed because they, like the present 19 action, were barred by Heck.3 In the sixth and present action, Hawes sues the state 20 governor and the Secretary of the CDCR for failing to free him even after he gave them 21 evidence that his trial was unfair. As with the prior actions, the current 42 U.S.C. § 1983 suit is barred by Heck v. 22 23 Humphrey, 512 U.S. 477 (1994). As was made clear in the prior dismissal orders, Heck 24 25 26 27 28 1 Hawes v. Brown, 17-cv-02400-WHO; and Hawes v. Brown, 17-cv-05166-WHO. 2 Hawes v. State of California, 17-cv-01168-WHO. 3 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. 1 bars section 1983 actions for damages for an allegedly unconstitutional conviction or 2 imprisonment, or for other harm caused by actions whose unlawfulness would render a 3 conviction or sentence invalid. Id. at 486-487. When a state prisoner seeks damages in a 4 section 1983 suit, the district court must therefore consider whether a judgment in favor of 5 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it 6 would, the complaint must be dismissed unless the plaintiff can demonstrate that the 7 conviction or sentence has already been invalidated. Id. at 487. The Heck bar applies here 8 because a judgment that defendants failed to free him would necessarily imply the 9 invalidity of his convictions and sentence. The Heck bar can be avoided if a plaintiff can prove that the conviction or sentence 10 United States District Court Northern District of California 11 has been reversed on direct appeal, expunged by executive order, declared invalid by a 12 state tribunal authorized to make such determination, or called into question by a federal 13 court’s issuance of a writ of habeas corpus. Id. 14 Hawes has made no showing that Heck does not bar his case. 15 Accordingly, this action is DISMISSED without prejudice. Hawes may refile his 16 suit if he can show that his conviction has been invalidated in one of the ways specified in 17 Heck. 18 19 20 21 22 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 23 24 25 26 27 28 2

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