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Gipson v. Guirbino

March 30, 2009

BRITNEY GIPSON, PLAINTIFF,
v.
GEORGE GUIRBINO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Britney Gipson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed his complaint on November 20, 2008.

DISCUSSION

A. Screening Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

Plaintiff alleges that on June 23, 2008, Fresno Police Officer R. Thompson stopped him as he was walking back to the hotel where he was living and subjected him to an illegal search and seizure. Although somewhat unclear, it appears that he alleges that Defendant Thompson stopped him without just cause for having a "toy cap gun" and placed him on a parole hold for possession of a simulated firearm. Plaintiff makes a separate allegation that Parole Agent Thomas Adams did not allow Plaintiff to live with his mother.

Plaintiff also makes allegations related to his parole board hearing. He alleges that the Commissioner of the Board of Parole Hearings, John Doe, knowingly and willingly violated his constitutional rights by (1) denying him a parole revocation hearing within 35 days of the parole hold; (2) revoking his parole for having a toy gun; (3) failing to provide Plaintiff with the evidence used against him; (4) denying him a written statement of the decision; and (5) denying him of his right to have a neutral and detached parole revocation hearing.

Plaintiff requests compensatory and punitive damages in the amount of $35,000,000, as well as injunctive relief.

C. Analysis

1. Search and Seizure Allegations

When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or imprisonment, "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, 28 U.S.C. § 2254." Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488.

Here, one of Plaintiff's main contentions revolves around what he alleges to be an illegal search and seizure. Plaintiff was on parole at the time and is now is prison. Although he states that his parole was revoked because of this incident, the Court is not certain that he is currently in prison based on this parole revocation. If his imprisonment resulted from the parole ...


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