United States District Court, N.D. California
August 9, 2004.
THOMAS GEORGE PARRISH, Plaintiff,
STATE OF CALIFORNIA; et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed without prejudice to petitioner filing
a new civil rights action if the time credit calculation decision
that he claims is erroneous is ever set aside or otherwise
IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL
Thomas George Parrish, an inmate at San Quentin State Prison,
filed this pro se civil rights action under 42 U.S.C. § 1983.
In his complaint, he alleges that his right to due process was
denied because prison officials did not correctly calculate his
time credits and release date. He alleges that, as a result, he
will be kept imprisoned beyond his proper release date. He also
seeks appointment of counsel and leave to proceed in forma
The complaint does not state a claim for relief. Parrish's
damages claim runs afoul of a line of cases that bars a damages
claim for unconstitutional imprisonment until the underlying
erroneous decision is set aside. In order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff 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. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Heck
bars a claim of unconstitutional deprivation of time credits
because such a claim necessarily calls into question the
lawfulness of the plaintiff's continuing confinement, i.e., it
implicates the duration of the plaintiff's sentence. Sheldon v. Hundley,
83 F.3d 231, 233 (8th Cir. 1996). The damages claim is dismissed
without prejudice to Parrish filing a new action for damages
after he has had the time credits decision set aside.
To the extent Parrish wants to ask this court to order his
release from prison, he must do so by filing a petition for writ
of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500
(1973), but not until he exhausts state judicial remedies,
Granberry v. Greer, 481 U.S. 129, 134 (1987) for each of his
claims. That is, Parrish must present his claims concerning the
calculation of time credits to the California Supreme Court
(e.g., in a petition for writ of habeas corpus) and give that
court a fair opportunity to rule on the merits of his claims
before he may present them to the federal court in a petition for
writ of habeas corpus.
For the foregoing reasons, this action is DISMISSED without
prejudice to Parrish filing a new civil rights action if the time
credit calculation decision that he claims is erroneous is ever
set aside or otherwise invalidated. Parrish's motion for
appointment of counsel and application to proceed in forma
pauperis are DENIED. (Docket # 3.)
IT IS SO ORDERED.
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