The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has consented to jurisdiction by a United States Magistrate Judge.
On September 20, 2012, plaintiff's original complaint was dismissed with leave to amend as his claims alleged therein against his parole officer, defense attorney, and the sheriff were found to be barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff has filed a first amended complaint. (Dkt. No. 13.) The court will screen the first amended complaint for 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 where 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.
In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff's first amended complaint contains allegations only against Tim Garrigan, his defense attorney. Plaintiff alleges in a single ground for relief that he was denied his fundamental right to present a defense based on his trial counsel's deficient performance, and in particular by counsel's failure to investigate and failure to correctly advise plaintiff regarding his decision whether to testify at trial. (Dkt. No. 13 at 3.*fn1 ) Plaintiff requests that damages be awarded. (Id. at 4.)
Plaintiff's claim against his defense attorney is barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held:
[I]n order to recover damages for an 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, 512 U.S. at 486-87.
Here, were plaintiff to succeed in his claim, an award of damages would "necessarily imply the invalidity" of his sentence. Id. at 487. Thus his claim is barred by Heck unless and until plaintiff's conviction and/or sentence has been invalidated. The United States Supreme Court has explained:
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.
Muhammad v. Close, 540 U.S. 749, 750 (2004 (per curiam).
In other words, plaintiff, as a petitioner, "may challenge the validity of his arrest, prosecution, and conviction only by writ of habeas corpus." Muhammad, 540 U.S. at 750. Plaintiff may proceed in an action for money damages only if he can demonstrate that the underlying state court judgment against him has ...