Gowadia vs. Sorenson; et al.

Filing 8

ORDER DISMISSING ACTION re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/18/2014. "This action is DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e), and 1915A(a), as frivolous and for failure to stat e a claim. The court certifies that any appeal is frivolous and is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and Rule 24(a)(3)(A) of the Federal Rules of Appellate procedure. See Neitzke v. Williams, 490 U.S. 319, 325 ( 1989) (defining frivolous as lacking arguable basis in fact or law); Coppedge v. United States, 369 U.S. 438, 445 (1962) (holding that appeal of frivolous issue is itself frivolous)." (emt, )CERTIFICATE OF SERVIC EParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Noshir S. Gowadia shall be served by first class mail at the address of record on July 21, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NOSHIR GOWADIA, FED. REG.
#95518-022,
Plaintiff,
vs.
KENNETH M. SORENSON, et al.,
Defendants.
____________________________

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CIV. NO. 14-00288 SOM/BMK
ORDER DISMISSING ACTION

ORDER DISMISSING ACTION
Before the court is pro se Plaintiff Noshir Gowadia’s
prisoner civil rights complaint, brought pursuant to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).

Compl., Doc. No. 1.

Gowadia is incarcerated at the

United States Penitentiary located in Florence, Colorado (“USPFlorence).

He sues United States Attorney for the District of

Hawaii Florence T. Nakakuni, Assistant United States Attorney
Kenneth M. Sorenson, USP-Florence Supervising Attorney
Christopher B. Synsvoll, and Nationstar Mortgage, LLC., for
“false prosecution,” and “false civil forfeiture.”
PageID #4, 11-22.

See id.,

Gowadia claims that his convictions in United

States v. Gowadia, Cr. No. 05-00486 SOM, and the civil forfeiture
of his home in United States v. 575 N. Holokai Road, Civ. No. 0500704 HG, were obtained on fabricated evidence, false testimony,

prosecutorial misconduct, and a conspiracy between Nakakuni,
Sorenson, Nationstar Mortgage, and Synsvoll.
million in damages.

Id., PageID #23.

He seeks $50

This action is DISMISSED

with prejudice for the following reasons.
I. SCREENING STANDARD
Because Gowadia is a prisoner proceeding in forma
pauperis, the court must review his pleading to determine if the
allegations are frivolous, malicious, fail to state a claim on
which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief.
1915A.

28 U.S.C. §§ 1915,

If so, the Complaint must be dismissed.

28 U.S.C.

§ 1915A(b).
The court must construe a pro se complaint liberally,
in the light most favorable to the plaintiff, and accept all
allegations of material fact as true.

See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam); Hebbe v. Pliler, 611 F.3d
1202, 1205 (9th Cir. 2010).

Leave to amend should be granted

unless it appears that amendment is futile.

Lopez v. Smith, 203

F.3d 1122, 1130 (9th Cir. 2000).
II.

DISCUSSION

In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), the
Supreme Court held that a civil rights complaint cannot proceed
when “a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would,
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the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.”

Id. at 487.

Although Heck dealt with a complaint

brought under 42 U.S.C. § 1983, its rationale applies equally to
civil rights actions brought under Bivens.

See Martin v. Sias,

88 F.3d 774, 775 (9th Cir. 1996).
Gowadia’s conviction in Cr. No. 05-00486 is pending on
direct appeal.

See App. No. 11-10058 (9th Cir. 2011).

He also

stipulated to dismissal with prejudice to any challenge to the
civil forfeiture.

See Civ. No. 05-00704 HG, Doc. No. 254.

A

ruling on Gowadia’s claims in this action would necessarily
undermine the validity of his criminal conviction.

Gowadia’s

claims are barred by the Heck doctrine, this defect cannot be
cured by further amendment, and this action is DISMISSED with
prejudice.
III. 28 U.S.C. § 1915(g)
The Prison Litigation Reform Act (“PLRA”) prohibits
prisoners from bringing actions in forma pauperis if the prisoner
has brought three or more actions in federal court that were
dismissed as frivolous, malicious, or for failure to state a
claim.

28 U .S.C. § 1915(g).

The Ninth Circuit Court of Appeals

has not definitively addressed whether a complaint dismissed
pursuant to Heck constitutes a strike under § 1915(g).

See

Andrews v. Cervantes, 493 F.3d 1047, 1052, n.2 (9th Cir. 2007);
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but cf., Martin, 88 F.3d at 775 (affirming dismissal as frivolous
of Bivens action that would imply the invalidity of prisoner’s
sentence).

The Supreme Court in Heck, however, stated its ruling

was based on a denial of “the existence of a cause of action,”
implying a failure to state a claim or lack of a cognizable legal
theory.

512 U.S. at 489.
Other courts have held that Heck dismissals constitute

dismissals for failure to state a claim.

See e.g., Smith v.

Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (finding
claim barred by Heck is frivolous and counts as strike under
§ 1915(g)); In re Jones, 652 F.3d 36, 37-39 (D.C. Cir. 2011) (per
curiam) (Heck dismissal constitutes “strike”); McCurdy v. Sheriff
of Madison Cnty., 128 F.3d 1144, 1145 (7th Cir. 1997); Hamilton
v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which
falls under the rule in Heck is legally frivolous.”); Schafer v.
Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck, the
complaint was properly dismissed for failure to state a claim.”).
See also Saunders v. Bright, 281 Fed. App’x 83, 85 (3d Cir. 2008)
(dismissing Heck-barred appeal as frivolous); Red Star v.
Trottier, 2014 WL 1334126 (D. Mont., Apr. 2, 2014); Romero v.
United States, 2011 WL 1261293 (D. Ariz., Apr. 5, 2011).

This

authority is persuasive.
Moreover, the District Court for the District of
Columbia recently dismissed Gowadia’s nearly identical claims
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against the United States Air Force pursuant to 28 U.S.C.
§ 1915A, as barred by Heck.

See Gowadia v. United States Air

Force, Civ. No. 14-00688 (D.D.C., Apr. 23, 2014); see also
Gowadia v. Fed. Bureau of Investigation, Civ. No. 14-00710
(D.D.C., Apr. 23, 2014) (dismissing as Heck-barred without
discussion of PLRA).

Gowadia’s repeated attempts to litigate

these claims after unequivocal notice that he may not allege them
in a civil action until his conviction has been overturned,
reversed, or expunged, is at least frivolous if not malicious.
Gowadia is NOTIFIED that these three dismissals will be
considered strikes under 28 U.S.C. § 1915(g), unless they are
overturned on appeal.

See Silva v. Di Vittorio, 658 F.3d 1090,

1100 (9th Cir. 2011) (holding that “a district court’s dismissal
of a case does not count as a ‘strike’ under § 1915(g) until the
litigant has exhausted or waived his opportunity to appeal”).
IV.

CONCLUSION

This action is DISMISSED with prejudice pursuant to 28
U.S.C. §§ 1915(e), and 1915A(a), as frivolous and for failure to
state a claim.
The court certifies that any appeal is frivolous and is
not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and
Rule 24(a)(3)(A) of the Federal Rules of Appellate procedure.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining
frivolous as lacking arguable basis in fact or law); Coppedge v.
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United States, 369 U.S. 438, 445 (1962) (holding that appeal of
frivolous issue is itself frivolous).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 18, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Gowadia v. Sorenson, et al., 14-00288 SOM/BMK; scrng 2014 Gowadia 14-288 som (FTSC
Heck bar); J:\Denise's Draft Orders\SOM\Gowadia 14-288 som (FTSC Heck bar).wpd

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