ORDER DISMISSING ACTION AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket no. 2).
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Plaintiff Marcus Keyes is a California State prisoner incarcerated at Corcoran State Prison. He filed this civil rights action under 42 U.S.C. § 1983 and seeks leave to proceed in forma pauperis. Venue is proper in this district as the acts complained of occurred in Santa Clara County. 28 U.S.C. § 1391(b).
Plaintiff raises claims challenging the validity of his conviction. He seeks post-conviction relief in the form of "sentence modification and or release." Complaint at 3.
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. Id. § 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 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). "'[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
The Supreme Court has held consistently that any claim by a prisoner attacking the fact or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, a claim that would necessarily imply the invalidity of a prisoner's conviction or continuing confinement must be brought in a habeas petition. The district court must dismiss a civil rights complaint seeking habeas relief without prejudice to the prisoner bringing it as a petition for a writ of habeas corpus. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Accordingly, this civil rights action is DISMISSED.
The Court notes that Plaintiff is precluded from filing a new habeas corpus petition in the district court unless he first seeks permission from the Ninth Circuit. This is because on October 14, 2004, this Court denied Plaintiff's habeas corpus petition challenging his current conviction. See Keyes v. Newland, C 00-3631 CW (docket no. 22).*fn1 Before a second or successive petition may be filed in the district court the petitioner must first obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A).
For the foregoing reasons, leave to proceed in forma pauperis is DENIED. This action is DISMISSED without prejudice and without leave to amend. The ...