United States District Court, E.D. California
FINDINGS AND RECOMMENDAITON RECOMMENDING DISMISSAL WITHOUT PREJUDICE AS BARRED BY HECK V. HUMPHRY, 512 U.S. 477 (1994) (Docs. 1, 10, 12, 18)
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff, Larry Bailey, is a state prisoner who is currently proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initially opened this action on a letter ("the opening letter") which he filed in the Northern District of California on October 25, 2013. (Doc. 1.) It was transferred to this Court on December 12, 2013 (Doc. 14), subsequent to Plaintiff filing the Complaint (Doc. 10) and motion to proceed in forma pauperis (Doc. 11). In both the opening letter and the Complaint, Plaintiff alleges "fabrication of arrest" and improper investigation, seeking his release from state custody. Plaintiff also requested appointment of counsel on a form intended for use in a federal habeas corpus case. (Doc. 12.)
On January 9, 2014, the Court issued an order for Plaintiff to show cause within thirty days why this action should not be dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. 18.) Despite filing a number of other documents, more than thirty days have passed and Plaintiff has failed to show cause why this action is not barred by Heck v. Humphrey.
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.
As stated in the order to show cause, the Complaint does not contain any allegations to show that Plaintiff's conviction has been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. It appears that Plaintiff's intent in filing this action is for habeas corpus relief rather than to pursue claims under § 1983.
The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). Based on Plaintiff's failure to respond to the order to show cause, dismissal of this action is appropriate. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local Rule 110.
Accordingly, the Court HEREBY RECOMMENDS the matter be DISMISSED without prejudice, based on Plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b); Local Rule 183(b).
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the ...