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JIMENEZ v. MITTLER

United States District Court, Northern District of California


August 20, 2003

ROBERT MICHAEL JIMENEZ, PLAINTIFF(S), VS. HARVEY MITTLER, ET AL., DEFENDANT(S)

The opinion of the court was delivered by: Vaughn Walker, District Judge

ORDER OF DISMISSAL (Doc # 2)

Plaintiff, a prisoner at the San Mateo County Jail, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 alleging that he was recently wrongly convicted and denied a fair trial by his court-appointed attorney, Harvey Mittler, the prosecutor, Gregory Devitt, and the presiding state superior court judge, Carl W. Holm. Among other things, plaintiff claims that the defendants knowingly allowed the victim to "commit perjury." Plaintiff seeks a new trial as well as the filing of charges and civil suit against the defendants.

Plaintiff also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable [ Page 2]

claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

Any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. Calderon v. Ashmus, 523 U.S. 740, 747 (1998). Plaintiff's request for a new trial accordingly must be DISMISSED without prejudice to him filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 after exhausting state judicial remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir 1995).

Plaintiff's request for charges and civil suit against the defendants on account of their involvement in denying him a fair trial and helping secure his wrongful conviction also must be DISMISSED without prejudice under the rationale of Heck v. Humphrey, 512 U.S. 477 (1994). See Trimble, 49 F.3d at 585. Heck bars a § 1983 action for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, as is the case here, unless the conviction or sentence first has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or [ Page 3]

called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 US at 486-87. Because plaintiff's conviction has not yet been so invalidated, his request for charges and civil suit against the defendants is not cognizable under § 1983. See id at 487.

CONCLUSION

For the foregoing reasons, plaintiff's request to proceed in forma pauperis (doc # 2) is DENIED and the action is DISMISSED without prejudice.

The Clerk shall close the file and terminate all pending motions as moot. No fee is due.

SO ORDERED. [ Page 1]

20030820

© 1992-2003 VersusLaw Inc.



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