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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 CEDRIC CHESTER JOHNSON, United States District Court Northern District of California 11 Plaintiff, 12 Case No. 16-05950 EJD (PR) ORDER OF DISMISSAL v. 13 14 EVAN GEORGE, et al., 15 Defendants. 16 17 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 18 19 pursuant to 42 U.S.C. § 1983 against his appellate attorney, the public defender, and his 20 trial attorneys in connection with his state conviction. Plaintiff’s motion for leave to 21 proceed in forma pauperis shall be addressed in a separate order. 22 DISCUSSION 23 24 25 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 28 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 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 4 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. 9 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 11 United States District Court Northern District of California 10 of allegations that the attorneys involved in his state conviction rendered ineffective 12 assistance. (Id. at 5-9.) Plaintiff seeks damages. 13 A claim for damages for an allegedly unconstitutional conviction or imprisonment, 14 or for other harm caused by actions whose unlawfulness would render a conviction or 15 sentence invalid is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487 16 (1994). A plaintiff must prove that the conviction or sentence has been reversed on direct 17 appeal, expunged by executive order, declared invalid by a state tribunal authorized to 18 make such determination, or called into question by a federal court’s issuance of a writ of 19 habeas corpus. Id. at 486-87. 20 Here, Plaintiff's allegations that he is unlawfully incarcerated due to Defendants’ 21 ineffective assistance under the Sixth Amendment would, if successful, necessarily imply 22 the invalidity of his state court conviction. However, Plaintiff has failed to show that the 23 conviction has been reversed. See id. As such, Plaintiff’s claims are barred by Heck and 24 must be dismissed. 25 Accordingly, Plaintiff's complaint is DISMISSED without prejudice to Plaintiff's 26 filing a new complaint if the challenged conviction and sentence are later invalidated. See 27 Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claim barred by Heck 28 2 1 2 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 3 attacking the conditions of his confinement as a civil rights action under 42 U.S.C. § 1983, 4 see Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the opposite is not true: A civil 5 rights complaint seeking habeas relief should be dismissed without prejudice to bringing it 6 as a petition for writ of habeas corpus. See Trimble, 49 F.3d at 586. Accordingly, Plaintiff 7 may seek relief for his allegedly unlawful conviction by filing a petition for a writ of 8 habeas corpus pursuant to 28 U.S.C. § 2254. 9 CONCLUSION 11 United States District Court Northern District of California 10 For the reasons set forth above, this action is DISMISSED without prejudice. 12 The Clerk shall enclose two copies of the court’s form petition with a copy of this 13 order to Plaintiff. IT IS SO ORDERED. 14 15 4/5/2017 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 16 17 18 19 20 21 22 23 24 25 Order of Dismissal PRO-SE\EJD\CR.16\05950Johnson_dism (Heck) 26 27 28 3

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