United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
COMPLAINT (ECF NO. 1) OBJECTIONS DUE WITHIN THIRTY
Greg Gonzales (“Plaintiff) is proceeding pro se and in
forma pauperis in this civil action pursuant to 42 U.S.C.
§ 1983. Currently before the Court is Plaintiffs
complaint filed on June 29, 2016. (ECF No. 1.)
Court is required to screen complaints brought by persons
proceeding in pro per. 28 U.S.C. § 1915A(a). Plaintiffs
complaint, or any portion thereof, is subject to dismissal if
it is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief 28 U.S.C.
§§ 1915A(b)(1), (2); 28 U.S.C. §
determining whether a complaint fails to state a claim, the
Court uses the same pleading standard used under Federal Rule
of Civil Procedure 8(a). A complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief. . . .” Fed.R.Civ.P.
8(a)(2). Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “[A]
complaint [that] pleads facts that are 'merely consistent
with' a defendant's liability . . . 'stops short
of the line between possibility and plausibility of
entitlement to relief.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 557). Further,
although a court must accept as true all factual allegations
contained in a complaint, a court need not accept a
plaintiff's legal conclusions as true. Iqbal,
556 U.S. at 678.
Plaintiff’s Complaint is Barred by Heck v.
claim that Plaintiff raises in his complaint is for double
jeopardy in violation of the Fifth Amendment. The Double
Jeopardy Clause precludes “a second prosecution for the
same offense, ” and prevents “the State from
'punishing twice, or attempting a second time to punish
criminally, for the same offense.'” Kansas v.
Hendricks, 521 U.S. 346, 369 (1997) (quoting Witte
v. United States, 515 U.S. 389, 396 (1995))
alleges that he was sentenced to a split sentence on a
receiving stolen property charge and he had two probation
violations while he was serving the probationary part of the
sentence. (ECF No. 1 at 3.) Plaintiff alleges that on
September 3, 2015, he was again sentenced for the receiving
stolen property charge and put on parole because he was
fighting a 290 charge. (ECF No. 1 at 3.) Plaintiff alleges
that the Defendant put him through health stress. (ECF No. 1
at 3.) Plaintiff is seeking to be taken off of parole and
compensated with monetary relief for the extra time that he
was illegally detained. (ECF No. 1 at 6.)
prisoner is challenging the legality or duration of her
custody and the relief he seeks is immediate or speedier
release, his sole federal remedy is habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct.
1827, 1841 (1973). In Heck v. Humphrey, 512 U.S. 477
(1994), the Supreme Court held that in order to recover
damages for alleged “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.” 512 U.S. at 486.
A claim for damages that bears a relationship to a conviction
or sentence that has not been invalidated, expunged or
reversed is not cognizable under 1983. Id. A
“prisoner's § 1983 action is barred (absent
prior invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74,
81-82 (2005). A challenge to the fact that a parolee is on
supervised release must be raised on a habeas petition.
Thornton v. Brown, 757 F.3d 834, 838 (9th Cir.
Plaintiff is challenging the fact that he was placed on and
continues to be on parole for his receiving stolen property
charge, his claim must be raised in habeas. Since the success
in this action would necessarily demonstrate the invalidity
of Plaintiff's sentence or its duration, the sole remedy
available to Plaintiff is a writ of habeas corpus. Therefore,
since the sole claim in Plaintiff's complaint is barred
by Heck, the Court recommends that the complaint be
dismissed without prejudice for failure to state a claim.
Dismissal Counts as a Strike ...