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RASHEED v. McNUNN

United States District Court, N.D. California


May 19, 2004.

HABEEBULLAH NA'EEM RASHEED, Plaintiff, V. JOHN McNUNN, Defendant

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL

Plaintiff Habeebullah Na'eem Rasheed, a California prisoner proceeding pro se, filed the above-titled civil rights action, pursuant to 42 U.S.C. § 1983, against defendant John McNunn, his parole officer. Plaintiff alleges he was taken into custody after defendant caused his parole to be revoked. He claims the revocation violated his rights under the Double Jeopardy Clause, and seeks money damages for the value of certain personal property, including an automobile, which he alleges he lost by reason of his having been incarcerated. Additionally, plaintiff has applied for leave to proceed in forma pauperis.

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

  In order to recover damages based on an allegedly unconstitutional conviction or term of imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff alleging a violation of § 1983 must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages based upon a conviction or sentence that has not been so invalidated is not cognizable under § 1983. See id. at 487. Heck also bars a claim which, if proven true, would call into question the validity of the revocation of a plaintiff's parole, unless the parole board's decision has been reversed, expunged, set aside or called into question. See Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995); See also McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (holding Heck bars § 1983 action challenging revocation of supervised release). Here, plaintiff claims that defendant, his parole officer, caused him to suffer an unconstitutional revocation of his parole. If proven true, this would call into question the validity of the parole revocation. Accordingly, this action is barred until the parole board's decision has been reversed, expunged, set aside or otherwise called into question.

  For the foregoing reasons, the above-titled action is hereby DISMISSED without prejudice. In light of this dismissal, the application to proceed in forma pauperis is DENIED and no filing fee is due.

  This order terminates Docket No. 2.

  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE

  Jury Verdict. This action came before the Court for a trial by jury The issues have been tried and the jury has rendered its verdict.

  Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the above-titled action is hereby DISMISSED without prejudice. In light of this dismissal, the application to proceed in forma pauperis is DENIED and no filing fee is due.

20040519

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