The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with a civil rights complaint brought pursuant to 42 U.S.C. § 1983. Plaintiff seeks monetary damages for alleged due process violations. On May 4, 2009, plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
On January 20, 2010, plaintiff's complaint was dismissed and plaintiff was granted thirty days in which to file an amended complaint. After receiving several extensions of time, plaintiff filed an amended complaint on July 2, 2010.*fn1 Plaintiff also filed several motions, which this court will address seriatim, following the screening of the amended complaint.
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Plaintiff's amended complaint names as defendants Sacramento District Attorney Jan Scully and various deputies in that office, the California Attorney General and various deputy attorneys general, Sacramento Superior Court Judge Ronald W. Tochterman, and two California Board of Prison Terms Commissioners, Lee Ann Chrones and Scott Moeszinger ("Board Commissioners"). Plaintiff also names Sacramento District Attorney's Office Bureau of Investigation Assistant Chief Steven McKinney. Plaintiff alleges various due process violations in the course of various parole hearings, primarily related to efforts to obtain exculpatory evidence for presentation at his parole hearing. Plaintiff claims his conviction was obtained through the use of perjured testimony, but seeks monetary damages for defendants' alleged reliance on perjured testimony and Board Commissioners' failure to obtain exculpatory evidence to consider during his parole hearing in violation of his due process rights.*fn2
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that a suit for damages on a civil rights claim concerning an allegedly unconstitutional conviction or imprisonment cannot be maintained absent proof "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, 512 U.S. at 486.
Under Heck, the court is required to determine whether a judgment in plaintiff's favor in this case would necessarily invalidate his conviction or sentence. Id. If it would, the complaint must be dismissed unless the plaintiff can show that the conviction or sentence has been invalidated. This court finds that plaintiff's action implicates the validity of plaintiff's conviction, and that plaintiff has not shown that the conviction has been invalidated.
Prevailing Ninth Circuit and Supreme Court precedent confirm plaintiff's civil rights claims are barred under Heck. In particular, the theory that a parole hearing officer was improperly biased has been found to fall squarely within the proscription of the Heck doctrine. See Edwards v. Balisok, 520 U.S. 641 (1997) (finding that a plaintiff's claim of procedural defects in his parole hearing included allegations of deceit and bias by the decisionmaker, and therefore necessarily implicated the validity of the hearing itself); Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997) (holding that a plaintiff's claim of due process violations arising from the consideration of false information in his prison file which led to a finding that he was ineligible for parole was barred by the Heck doctrine).
Here, plaintiff sues various district attorneys and deputy attorneys general for their reliance on allegedly perjured testimony during his criminal trial and during his efforts to obtain habeas corpus relief. Plaintiff also sues Board Commissioners for alleged procedural irregularities during parole hearings, primarily related to their failure to obtain the exculpatory evidence and to consider it during the parole hearings.*fn3 Under Butterfield's rationale, "a challenge to the procedures used in the denial of parole necessarily implicates the validity of the denial of parole and, therefore, the prisoner's continuing confinement," 120 F.3d at 1024, accordingly plaintiff's claims concerning his parole hearings are not cognizable. If plaintiff were successful in his argument that his conviction was obtained by the use of perjured testimony, and he was denied parole based on the faulty conviction, such a result would necessarily imply that the underlying conviction was invalid. Even though plaintiff articulates his allegations of procedural defects as a claim for money damages only, not an attack on his underlying conviction or the denial of parole, his allegations concerning exculpatory evidence are an attempt to challenge the substantive result of his conviction in a parole hearing. Id. Such a collateral attack is not permitted under Heck.
Plaintiff's reliance on Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), is unavailing. Neal cites Butterfield favorably, and distinguishes Neal as involving a challenge to labeling as a sex offender pursuant to a sex offender treatment program in Hawaii, which would not undermine either conviction or continuing confinement.
Moreover, plaintiff is not spared application of Heck based on a theory that he cannot now obtain habeas relief as a matter of law because his habeas petition was dismissed as barred by the statute of limitations. Plaintiff's failure to timely pursue habeas relief does not bar application of Heck. See Cunningham v. Gates, 312 F.3d 1148, 1154 n.3 (9th Cir. 2002).*fn4
Accordingly, because plaintiff has not offered any evidence that his conviction has already been overturned, he may not proceed with his claims here and this case should be dismissed for failure to state a claim upon which relief can be granted.*fn5 See 28 U.S.C. § 1915(e)(2)(B)(ii). Because plaintiff ...