Johnson v. George et al

Filing 5

ORDER OF DISMISSAL. The action is DISMISSED without prejudice. The Clerk shall enclose 2 copies of the court's form petition with a copy of this order to Plaintiff. Signed by Judge Edward J. Davila on 4/5/2017. (Copy of order and 2 copies of form petition mailed to Plaintiff by AMK) (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 4/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CEDRIC CHESTER JOHNSON,
United States District Court
Northern District of California

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Plaintiff,

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Case No. 16-05950 EJD (PR)
ORDER OF DISMISSAL

v.

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EVAN GEORGE, et al.,

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Defendants.

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Plaintiff, a California state prisoner, filed the instant pro se civil rights action

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pursuant to 42 U.S.C. § 1983 against his appellate attorney, the public defender, and his

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trial attorneys in connection with his state conviction. Plaintiff’s motion for leave to

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proceed in forma pauperis shall be addressed in a separate order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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Plaintiff’s Claims
Plaintiff claims that appellate counsel rendered ineffective assistance in connection

with his state criminal conviction appeal. (Compl. at 3.) Plaintiff continues with a string

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United States District Court
Northern District of California

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of allegations that the attorneys involved in his state conviction rendered ineffective

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assistance. (Id. at 5-9.) Plaintiff seeks damages.

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A claim for damages for an allegedly unconstitutional conviction or imprisonment,

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

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sentence invalid is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487

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(1994). A plaintiff must prove that the conviction or sentence has been reversed on direct

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appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court’s issuance of a writ of

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habeas corpus. Id. at 486-87.

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Here, Plaintiff's allegations that he is unlawfully incarcerated due to Defendants’

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ineffective assistance under the Sixth Amendment would, if successful, necessarily imply

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the invalidity of his state court conviction. However, Plaintiff has failed to show that the

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conviction has been reversed. See id. As such, Plaintiff’s claims are barred by Heck and

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must be dismissed.

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Accordingly, Plaintiff's complaint is DISMISSED without prejudice to Plaintiff's

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filing a new complaint if the challenged conviction and sentence are later invalidated. See

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Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claim barred by Heck

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may be dismissed sua sponte without prejudice under 28 U.S.C. § 1915).
Furthermore, although a district court may construe a habeas petition by a prisoner

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attacking the conditions of his confinement as a civil rights action under 42 U.S.C. § 1983,

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see Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the opposite is not true: A civil

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rights complaint seeking habeas relief should be dismissed without prejudice to bringing it

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as a petition for writ of habeas corpus. See Trimble, 49 F.3d at 586. Accordingly, Plaintiff

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may seek relief for his allegedly unlawful conviction by filing a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.

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CONCLUSION

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United States District Court
Northern District of California

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For the reasons set forth above, this action is DISMISSED without prejudice.

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The Clerk shall enclose two copies of the court’s form petition with a copy of this

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order to Plaintiff. IT IS SO ORDERED.

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4/5/2017
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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Order of Dismissal
PRO-SE\EJD\CR.16\05950Johnson_dism (Heck)

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