The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
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.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff challenges the validity of his nolo contendere plea and conviction, his prior serious felony conviction, "or any issue involved therein," and seeks monetary damages. Plaintiff argues that "misrepresentation of the plea agreement for twelve years was based on evidence of presumption of vindictiveness or actual vindictiveness, . . . which caused the improper use of prior serious felony conviction . . . to enhance his sentence of 25 years-to-life on June 18, 2007." (Dkt. No. 1 at 2.) It appears plaintiff contends the reversal of his 2003 conviction demonstrates vindictiveness on the part of the prosecutor. Plaintiff also contends "it was understood that the court and the prosecution agreed to dismiss his prior serious felony conviction." (Dkt. No. 1 at 3.) A brief synopsis of the underlying proceedings follows.
1. On October 6, 2003, plaintiff pled nolo contendere to battery with serious bodily injury with an enhancement that he personally inflicted great bodily injury, and an admission of a prior serious felony conviction. (Dkt. No. 1 at 14.)
2. On April 29, 2005, the 2003 conviction was reversed and the case remanded to the trial court. (Dkt. No. 1 at 27.)
3. On May 12, 2006, the trial court addressed scheduling and plaintiff's counsel raised the issue of plaintiff's competence to stand trial. (Dkt. No. 1 at 17.) The prosecutor revoked his plea offer.*fn1 (Id. at 18.)
4. Plaintiff's case went to jury trial, and on May 9, 2007, plaintiff was convicted of assault using force likely to produce great bodily injury and battery inflicting serious bodily injury. (Dkt. No. 1 at 29-30.) The jury also found true an enhancement allegation that as to each offense defendant inflicted great bodily injury under circumstances involving domestic violence. (Id.) After a subsequent bench trial, the court found true the enhancement allegations that plaintiff had two prior convictions of serious or violent felony offenses. People v. Jones, 2008 WL 3878347 (Cal. App. 3 Dist. Aug. 22, 2008).*fn2 Plaintiff was sentenced to 25 years to life in state prison.
First, plaintiff is challenging his 2007 conviction in a petition for writ of habeas corpus that is presently under submission. Jones v. Haws, 2:09-cv-1735 KJM P. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986). Review of the records filed in the habeas action reveal plaintiff is challenging, in various ways, the 1986 and 1989 prior criminal convictions and how they were used to enhance his sentence. (Id., Dkt. No. 1 at 8, 10, 11, 12, 22 & 23.) Plaintiff is advised that he cannot pursue the same claims in two different court actions.
Second, plaintiff is advised that he cannot challenge his 1986 or 1989 prior criminal convictions in a civil rights action absent proof that these convictions have been reversed or invalidated. In Heck v. Humphrey, the Supreme Court held that 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote omitted). Plaintiff has provided evidence that his 2003 conviction was reversed on appeal, but he has not provided evidence that his 1986 or 1989 ...